HUMAN RIGHTS QUARTERLY - University of Texas at Dallaslck016000/HRQSub.pdf · Human Rights Quarterly 29 ... that common law system countries ... that “first and foremost” constitutionalism

HUMAN RIGHTS QUARTERLY

Human Rights Quarterly 29 (2007) 1065–1097 © 2007 by The Johns Hopkins University Press

Legal Systems and Constitutionalism in Sub-Saharan Africa: An Empirical Examination of Colonial Influences on Human Rights

Linda Camp Keith* Ayo Ogundele**

AbSTRACT

This article examines the extent to which the British and French colonial legacies influence the human rights behavior of post-colonial African states. We have examined three areas where the literature suggests different colonial experiences for former British and French colonies: legal systems, formal provisions for judicial independence, and emergency powers. Our findings show very little support that different colonial legacies in those three areas affect the level of state abuse of personal integrity in sub-Saharan Africa. We find no solid evidence, for example, that common law system countries have better human rights behavior than civil code system countries. Nor is there any support for the propositions that former French colonies would have less constitutional provisions for judicial independence and checks against the executive during times of emergency than English colonies. Indeed, contrary to expectations, it is the French-legacy states that have

* Linda Camp Keith is Assistant Professor of Political Science, School of Economic, Political and Policy Sciences, University of Texas at Dallas. Her current research interests are human rights and the rule of law, as well as the US Supreme Court. She has published research on human rights in Political Research Quarterly, International Studies Quarterly, Journal of Peace Research, Judicature, and Human Rights Quarterly. Her work on the US Supreme Court has been published in Judicature, American Journal of Politics, Social Science Quarterly, and Social Science History and includes a forthcoming book on the judicial review.

** Ayo Ogundele, Professor of Political Science, Kilgore College. His current research interests are the US Supreme Court, particularly its early years, and

the courts of western Africa. He has published research on the Supreme Court in American Journal of Politics, Social Science Quarterly, and Social Science History. He has presented numerous papers on the Nigerian Supreme Court and the courts of Western Africa.

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stronger protections for emergency powers, perhaps suggesting recognition of the broad powers of the president in the bequeathed French political system and the need to curtail some of those powers. Likewise, we find little evidence that these elements affect their human rights behavior.

I. INTRodUCTIoN

The wind of democracy blowing through sub-Saharan Africa since the early 1990s has led to an unprecedented wave of newly crafted constitutions, many of which incorporate bills of rights and guarantees of judicial independence, all aimed at protecting human rights and guarding against a resurgence of absolutist rule on the continent. As of 2004, all fifty-four nations of the region have either written a new constitution or modified their previous ones in an effort to move toward a more democratic or liberalized form of governance. It remains doubtful, however, whether these constitutional reforms can im-prove human rights protections for citizens in the region.

Recent research by one of this study’s co-authors found little linkage between rights-friendly constitutional provisions and states’ abuse of personal integrity in the region in the period between 1976 and 1997.1 However, the research also showed that constitutional provisions for judicial independence and individual rights perform much more strongly in former French colonies than in former British colonies across the globe, suggesting the need to examine the impact of colonial experience on constitutionalism and states’ human rights practices. We build previous research and ask whether there are differences in human rights practices among French and British African states, expecting that the colonial differences found at the global level also manifest themselves at the regional level.

We anticipate that in the African context such colonial differences de-rive from the governmental systems Great Britain and France bequeathed to their former colonies, especially in terms of executive power or from the colonial power’s influence on the type of legal system adopted by the independent state. For instance, the semi-presidential systems, which the former French colonies were more likely to have adopted, have been said to constrain the executive less than the Westminster system that influenced the former British colonies. Additionally, it has also been argued that former British colonies were more likely than Francophone states to develop an independent judiciary that acts against arbitrary state power. The common law system, which the former British colonies are more likely to adopt, has

1. Linda Camp Keith, National Constitutions and Human Rights Protection: Regional Dif-ferences and Colonial Influences, in Understanding HUman rigHts Violations (Sabine C. Carey & Steven C. Poe eds., 2004).

2007 Empirical Examination of Colonial Influences on Human Rights 1067

been said to provide more stability and consistency of jurisprudence, as well as a stronger rule of law, than the Dutch-Roman civil code of the former Iberian and French colonies. Below we elaborate on these arguments and the literatures on which they draw.

The study proceeds in four sections. First, we briefly review the literature on the link between colonial legacy and human rights behavior of African countries. Second, we examine other factors, which are both theoretically and empirically linked to state respect for human rights. Next, we describe our research design and the data we use to measure our concepts. Our analysis covers all sub-Saharan African countries in the period from 1976 to 2001. Lastly, we present our findings and conclude with a discussion of the implications of our study.

II. ColonIal lEgaCy of afRICan CountRIEs and Human RIgHts

The debate over the relationship between colonialism and human rights in Africa has been closely linked to the debate between the universality or cultural relativity of human rights and fundamental freedoms. While some scholars believe that non-western societies can be just as receptive to constitutionalism as western countries, several others have questioned whether constitutionalism will function fully in regions outside of Europe (and European-settled countries). The primary argument is that these rights reflect Western values, which give primacy to individualism, and thus run counter to traditional values that are strongly embedded in the context of the community.2 Abdullahi Ahmed An-Na’im makes a much broader argu-ment, shifting the focus toward the process through which constitutionalism developed in the West, ultimately concluding that the success of constitu-tionalism, whether British, American, or French, was due to an incremental and practical process of trial and error over centuries. Further, he argues that “first and foremost” constitutionalism was a product of the state’s “own

2. Bonnie Ibhawoh, Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State, 22 Hum. Rts. Q. 838 (2000); Amani Daima, Chal-lenges for Emerging African Democracies, 10 Peace Rev. 57 (1998); Atilio A. Borón, Latin America: Constitutionalism and the Political Traditions of Liberalism and Socialism, in constitutionalism and democRacy: tRansitions in tHe contemPoRaRy WoRld (Douglas Greenberg, et al. eds., 1993); Samuel P. Huntington, The Clash of Civilizations?, 72 FoR. aFF. 22 (1993); Franck Moderne, Human Rights and Postcolonial Constitutions in Sub-Saharan Africa, in constitutionalism and RigHts: tHe inFluence oF tHe united states constitution abRoad (Louis Henkin & Albert J. Rosenthal eds., 1990); Claude Ake, The African Context of Hu-man Rights, 34 aFRica today 5(1987); see also Abdullahi Ahmed An-na’im, Introduction, in Human RigHts undeR aFRican constitutions: Realizing tHe PRomise FoR ouRselves (Abdullahi Ahmed An_na’im ed., 2003).


history, process, and context; constantly evolving and adapting in response to its own challenges, internal and external” and sustained by “its own culture, institutions, and nationalist mythology.”3

As we will see, much of the skepticism about the universality of constitu-tionalism relates directly to colonialism and its enduring legacy, particularly in Africa, which experienced the most recent and widespread level of colo-nialism.4 One argument casts the post-colonial constitutions as illegitimate, positing that many of these documents were imposed upon the states by the departing colonial powers and therefore, lacked the legitimacy of public consensus.5 Additionally, Claude Welch contends that the constitutional recognition of rights was often belated and tended to protect the European expatriate population’s rights over the native majority’s rights.6 Furthermore, Okoth-Ogendo asserts that the independence constitutions of post-colonial Africa merely perpetuated the colonial institutions of control and coercion.7 Makau Mutua concurs, noting that despite Kenya’s liberal constitution, “the post-colonial state was autocratic at its inception because it wholly inherited the laws, culture, and practices of the colonial state.”8 However, Bonnie Ibhawoh notes that many of the colonial-engineered constitutions have now been revised or entirely rewritten to reflect the “new national realties” of the post-colonialist state in Africa.9

A second view associated with theories of neo-imperialism emphasizes the long-term legacy of colonial experience in shaping the economic and political structures of these states. It is argued that colonialism did not cul-tivate a climate supportive of constitutionalism, but instead produced states that were “created to be totalitarian, oppressive, and exploitative” and to be supportive of the “colonial purposes of dominating African peoples and exploiting their resources.”10 Colonial rule, Eboe Hutchful contends, “dele-gitimated or submerged other linking mechanisms . . . [of] African society” and instead “established a privileged political discourse . . . accessible only to a small minority.” Hutchful further maintained that the “political selec-tion mechanisms similarly excluded large strata of the population.”11 John

3. abdUllaHi aHmed an-na’im, aFrican constitUtionalism and tHe rUle oF islam 171 (2006). 4. claUde e. WelcH, HUman rigHts and deVeloPment in aFrica 75–89 (1984). 5. Ibhawoh, supra note 2, at 846, notes that many of the colonial-engineered constitutions

have now been revised or entirely rewritten to reflect the “new national realties” of the post-colonialist state in Africa. See also Moderne, supra note 2; WelcH, supra note 4; Makau Mutua, Justice Under Siege: The Rule of Law and Judicial Subservience in Kenya, 23 HUm. rts. Q. 96 (2001). See also An-na’im, Introduction, supra note 2.

6. WelcH, supra note 4, at 13. 7. H.W.O. Okoth-Ogendo, Constitutions without Constitutionalism: Reflections on an

African Paradox, in constitUtionalism and democracy, supra note 2, at 69. 8. Mutua, supra note 5, at 97. 9. Ibhawoh, supra note 2, at 846. 10. Daima, supra note 2, at 59.11. Eboe Hutchful, Reconstructing Political Space: Militarism and Constitutionalism in Africa,

in constitUtionalism and democracy, supra note 2, at 218.


Rusk also asserts that colonial modes of production were instrumental in the formation of a privileged comprador class whose interests were more linked to the international system of trade than to indigenous interests. He argues that when the system of privilege within a developing nation was challenged by the masses, ruling elite, lacking sufficient economic or political resources to deal with the discontent, inevitably turned to repression to deal with this challenge.12 Thus, colonialism not only set up a system of exclusion, but also established a pattern of state repression as a tool to deal with popular dissent. A pattern of previous state repression has been shown to be the single strongest predictor of a state’s future human rights behavior.13

A third focus looks to social cleavages. Here, the postcolonial African state is conceived as a colonial construct. Henry Carey observed that co-lonial-induced social cleavages caused by artificial drawing of territorial boundaries, which left formerly separate and different ethnic tribes and cultures under one political entity, have contributed to ethno-religious con-flicts and other problems in postcolonial states.14 Indeed, the proposition that the ethnic composition of society affects provision of human rights has been confirmed by empirical study.15

Finally, a fourth focus has been the effects of inherited legal systems, governmental systems, and constitutional limitations on executive powers. Carey maintains the imposition of foreign legal systems on indigenous legal systems has not only led to dual and conflicting legal (and political) cultures, it has also contributed to the perceived illegitimacy of legal decisions and institutions in many postcolonial states.16 However, several distinctions have been made between the English common law and French civil law systems. It can be argued, for example, that the underlying principle of separation of powers is seen somewhat differently by judges in civil law and common law countries.

Common law countries, especially the United States, see judges as balancing the power of the other branches of government. By contrast, the original idea of separation of powers in France was to assign different roles to legislation and to judges, with the latter only applying the law. Other

12. John Rusk, Structure of Neo-Colonialism: The African Context of Human Rights, 33 aFrica today 73 (1986).

13. Steven C. Poe & C. Neal Tate, Repression of Human Rights and Personal Integrity in the 1980s: A Global Analysis, 88 am. Pol. sci. reV. 853 (1994) (hereinafter “Repression”); Steven Poe, C. Neal Tate & Linda Camp Keith, Repression of Human Rights to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976–1993, 43 int’l stUd. Q. 291 (1999) (hereinafter “Repression Revisited”).

14. Henry F. Carey, The Postcolonial State and the Protection of Human Rights, 22 comP. stUd. soUtH asia, aFrica & middle east 59, 66 (2002).

15. Chris Lee et al., Ethnicity and Repression: The Ethnic Composition of Countries and Hu-man Rights Violations: Regional Differences and Colonial Influences, in Understanding HUman rigHts Violations, supra note 1.

16. Carey, supra note 14, at 65–66.


characteristics associated with common law include predictability of results (through the principle of stare decisis) and the desire to treat equally every-one who faces the same or similar legal problems, as opposed to the civil system where a judge is not legally bound by the previous decision of a higher court in an identical or similar case and is quite free to ignore such a decision. But more importantly, in regard to human rights, Sandra Joireman posits that adopting English common law leads to stronger rule of law than does adopting continental civil law, but argues this to be true only in those countries that have been colonized.17

Franck Moderne expects that constitutionalism and judicial independence will be less prevalent in Francophone than Anglophone Africa. He believes the Francophone states have had less exposure to US constitutionalism and that the “dual link of common language and French metropolitan training enjoyed by a majority of Francophone African elites” and has influenced the new states’ judicial models.18 He also notes that Anglophone states may have a longer history with judicial independence due to the independence of African colonial judiciary under the British prior to independence. When political power was transferred in these countries, Moderne argues, the “constitutional guarantee of judicial independence was considered to be of the utmost importance.”19 Still, he cautions that the post-colonial experi-ences in Ghana, Nigeria, Tanzania, and Zambia temper the expectation that judicial independence might have significant influence on the protection of individual human rights.20

The problematic experiences in these states are linked to one-party state rule, judicial membership in political parties, and bias in rulings in favor of the ruling party. Moderne also argues that Francophone African states tended to “follow more directly the constitutional models of their former colonial powers.”21 This led him to conclude that judicial review, absent in French and Belgium systems, would not be practiced (or not practiced as well) in post-colonial Francophone countries. Additionally, he concludes that in Fran-cophone African states the court structures were nearly nonexistent at the time of independence and could not be constructed easily or quickly. Likewise, Carey suggests that former British colonies were more likely to develop an independent judiciary that acted against arbitrary state power.22

With regard to governmental systems, B.O. Nwabueze draws a link be-tween the British parliamentary system, where most executive power has to

17. Sandra F. Joireman, Colonization and the Rule of Law: Comparing the Effectiveness of Common Law and Civil Law Countries, 15 Pol. econ. 4 (2004).

18. Moderne, supra note 2, at 335.19. Id. at 328.20. Id. at 329.21. Id. at 335.22. Carey, supra note 14.


be conferred by the legislature, leaving the executive no inherent discretion-ary power to act against citizens, and the French presidential system, which gives the executive considerable areas of rule-making power that is indepen-dent of the legislature.23 These systemic differences suggest that the French system would be more likely to facilitate an executive’s dictatorial actions. However, since the 1970s, most African states have adopted one variation of the presidential system or another, and only two states—Le Sotho and Swazi-land—continue to use the Westminster parliamentary system. Still, it is possible that an indirect legacy of these systems remains, in regard to constitutional constraints, on a dictatorial president by the legislature and the judiciary with regard to human rights, especially during times of emergencies.

Moderne points out that national emergencies “erode judicial control or render its influence ineffective by creating conditions for the assumption by the government of extraordinary powers.”24 While most constitutions tend to limit constitutionalism to some degree during a state of emergency, some newly promulgated constitutions seek to regulate executive power during these emergencies primarily through constraints on the executive through provision of explicit checks by the legislative or judiciary branch. It seems important to control for these constitutional provisions in examining judicial independence. Further, while neither Moderne nor Nwabueze make a di-rect connection to the colonial legacy, it seems likely that such differences might be present. For example, British common law systems have tended to produce more explicit and in-depth constitutions; whereas, former-French territories have tended to adopt shorter constitutions that merely set a gen-eral outline of governmental organization that are then fleshed out through organic law.25 As Moderne points out, early experiences with parliamentary systems tended to produce constitutions with stronger checks on the execu-tive vis-à-vis the legislature. We would therefore expect that constitutions in former British colonies would have stronger checks against the executive during times of emergency.

Our present inquiry is directed at this fourth category of colonial lega-cies. Thus, we examine, in conjunction with other factors, whether colonial differences in legal systems, formal provisions for judicial independence, and formal delineation of emergency powers affect the human rights behavior of African states south of the Sahara. Our objective is to determine the relative influence these aspects of colonial legacy have had on actual state human rights practices in the region. We focus on these posited colonial differences, more so because a recent analysis of African constitutional jurisprudence begs the question of whether formal legal systems would influence the hu-man rights behavior of African states.

23. B. O. NwaBueze, CONstitutiONalism iN the emergeNt states 35 (1973).24. Moderne, supra note 2, at 340.25. NwaBueze, supra note 23, at 31.


H. Kwasi Prempeh argues that “[f]or the better part of its life the Afri-can state—and for that matter, the African judiciary—has paid homage to a jurisprudence of executive supremacy, with regrettable consequences for civil liberties and personal freedom across the continent.”26 He attributes this desultory behavior partly to deference to the long-standing British tradition of common-law doctrine and its concomitant principle of stare decisis by African supreme courts. Thus, while analyses by Nwabueze and Moderne posit that colonial differences in legal systems and constitutions left British colonies better able to protect or provide human rights than their French counterparts, Prempeh’s analysis suggests that these differences have been muted by actual behavior and the philosophy of constitutional jurisprudence adopted by courts on the continent. We seek to determine empirically, by means of quantitative data, the validity of these competing hypotheses that the literature has suggested.

• Hypothesis One: Sub-Saharan African states with a British colonial legacy will have better human rights behavior than those states with a French colonial legacy.

• Hypothesis Two: Sub-Saharan African states with common law systems will have better human rights practices than those states with the Dutch-Ro-man civil code legal system.

• Hypothesis Three: Sub-Saharan African states with a British colonial legacy will have stronger provision for judicial independence than those states with a French colonial legacy. In turn, these provisions will be more likely to influence human rights behavior in the British-legacy states than the French.

• Hypothesis Four: Sub-Saharan African states with a British colonial legacy will have stronger provision for constraints on the executive during states of emergency than those states with a French colonial legacy. In turn, these provisions will be more likely to influence human rights behavior in the British-legacy states than the French.

III. PERSoNAL INTEGRITY AbUSE ModEL

The abuse of the right to personal integrity is a narrow set of human rights violations that include political imprisonment, torture, and killings or disap-pearances. While this set of rights does not include all of the rights promoted under the international covenants and some constitutions, it does focus on the abuses that are considered to be the most “egregious and severe crimes

26. H. Kwasi Prempeh, A New Jurisprudence for Africa, 10 J. democ. 135, 140 (1999). The jurisprudence of executive supremacy is discussed as needing to give way to what Prempeh terms “a jurisprudence of constitutionalism.”


against humanity,” and the ones that represent abuses that “are of the sort that usually can . . . be avoided.”27 More importantly, this set of rights cov-ers the core rights that would have to be fulfilled in order for the provision of the other rights to be meaningful.

We employ the Political Terror Scales to measure abuse of personal integrity rights, which measure the abuse on a scale of 1 to 5, with 1 rep-resenting states with the least amount of abuse and 5 representing states with the highest level of abuse.28 Two sets of scales have been created: one based on US State Department Country Reports on Human Rights Practices and one based on Amnesty International reports. In Steven Poe and C. Neal Tate’s personal integrity models, parallel analysis has been conducted using each of these measures. Overall, the studies of personal integrity abuse using these two measures have produced consistent results across the two measures. Following later studies, we employ only one of the personal integrity scales in this article—the one based on the Amnesty International reports.29

This work builds upon previous studies of personal integrity abuse, and thus we use the standard model and control for four factors that have

27. Poe & Tate, Repression, supra note 13, at 854. 28. The countries are assigned a rating according to the following rules from Raymond

Gastil: (1) Countries [are] under a secure rule of law, people are not imprisoned for their views, and torture is rare or exceptional. . . . Political murders are extremely rare.

(2) There is a limited amount of imprisonment for nonviolent activity. However, few persons are affected, torture and beating are exceptional. . . . Political murder is rare.

(3) There is extensive political imprisonment, or a recent history of such imprisonment. Execution or other political murders and brutality may be common. Unlimited detention, with or without trial, for political views is accepted.

(4) The practices of [level 3] are expanded to larger numbers. Murders, disappearances are a common part of life. . . . In spite of its generality, on this level terror affects primarily those who interest themselves in politics or ideas.

(5) The terrors of [level 4] have been expanded to the whole population. . . . The leaders of these societies place no limits on the means or thoroughness with which they pursue personal or ideological goals.

Michael Stohl & David Carleton, The Foreign Policy of Human Rights: Rhetoric and Reality from Jimmy Carter to Ronald Reagan,7 HUm rts. Q. 205 (1985)(citing raymond d. gastil, Freedom in tHe World: Political rigHts and ciVil liberties, 37 (1980)).

Examples of level 5 repression would be seen in Afghanistan in 1985 and Colombia in 1991. The Philippines in 1990 and Libya in 1987 are examples of level 4 countries. Cuba in 1991 and Ghana in 1982 are examples of level 3 countries. Congo in 1985 and Cameroon in 1987 are examples of level 2 countries. Benin in 1991 and Oman in 1991 are examples of level 1 countries. Full sets of examples and excerpts of country reports for each level of repression are available in Mark Gibney & Matthew Dalton, The Political Terror Scale, 4 Pol’y stUd. & deVeloPing nations 73 (1986).

29. Because Amnesty International reports tend to leave out countries with good human rights behavior, a potential bias would arise if we used only countries on which Amnesty International reported. Therefore, consistent with Poe, Tate & Keith, in cases in which Amnesty International did not issue a report but the US State Department did, a score gained from applying the same set of standards to the US State Department reports was substituted. Poe, Tate & Keith, Repression Revisited, supra note 13, at 291.


consistently proven to be statistically and substantively significant in state abuse of these rights. These variables are described in detail in previous studies, thus we only briefly summarize their theoretical links and their operationalization.30

Population Size: Conway Henderson argues that states with large popu-lations may be tempted to “resort to repression as a coping mechanism” to deal with threats that arise due to severely strained national resources and unfulfilled public needs.31 Additionally, Henderson argues that we must statistically control for population size because the laws of probabil-ity dictate that as the number of persons in a country grows so does the number of opportunities for repressive actions. Recent empirical evidence has supported Henderson’s hypothesis.32 The natural logarithm of the total national population is used in the model in order to deal with the skewed distribution of the population data.

Economic Standing: Expectations concerning economic standing follow those of population size. Neil Mitchell, James McCormick, and Henderson all argue that social and political tensions related to economic scarcity are likely to increase instability in the poorest countries and thus increase the probability that the regime would use repressive measures to maintain order; whereas, in wealthier countries the population will be satisfied and will be less likely to present a threat to order that would trigger repressive state action.33 Empirical evidence has consistently shown that higher levels of economic development reduce the probability of political repression.34

30. For fuller details see Poe & Tate, Repression, supra note 13; Poe, Tate & Keith, Repression Revisited, supra note 13. The Poe, Tate, & Keith 1999 dataset (Repression Revisited) is used here with the exception that the Polity III measure has been replaced by the Polity 98 measure and the author has extended the data set to include 1994–1996.

31. Conway W. Henderson, Population Pressures and Political Repression, 74 soc. sci. Q. 322, 325 (1993).

32. Poe, Tate & Keith, Repression Revisited, supra note 13; Christian Davenport, Assessing the Military’s Influence on Political Repression, 23 J. Pol. & mil. soc. 119 (1995); Poe & Tate, Repression, supra note 12; Linda Camp Keith, The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior?, 36 J. Peace res. 95 (1999); Sabine C. Zanger, A Global Analysis of the Effect of Political Regime Changes on Life Integrity Violations, 1977–93, 37 J. Peace res. 213 (2000). Henderson hypothesized that growth in population size would increase the likelihood of repression. Henderson, Population Pressures and Political Repression, supra note 31. While he did find evidence of this effect in his single-year study, those results have not been found to hold up in fuller studies of human rights abuse. Rather we have found population size to be the significant factor, both statistically and substantively.

33. Neil J. Mitchell & James M. McCormick, Economic and Political Explanations of Hu-man Rights Violations, 40 World Pol. 476 (1988); Conway W. Henderson, Conditions Affecting the Use of Political Repression, 35 J. conFl. resol. 120 (1991).

34. For example, Mitchell & McCormick, supra note 33; Poe & Tate, Repression, supra note 13; Poe, Tate & Keith, Repression Revisited, supra note 13; Keith, The United Nations International Covenant on Civil and Political Rights, supra note 32.


Economic standing is operationalized as the state’s per capita GNP (in thousands, US Dollars).35

Military Regime: As Poe and Tate note, the role of the military is one of the factors first explored by those interested in human rights-related phenomena.36 Military regimes are believed to be more likely to resort to repression, because armies by their nature and by habit are prepared to use force as a means of control or coercion.37 Empirical evidence of the impact of military regimes on human rights behavior has been somewhat weak. In personal integrity studies the results have been rather inconsistent compared to other factors.

Poe and Tate and later, Linda Camp Keith, examined the impact of military controlled regimes on personal integrity abuse.38 In these studies, military controlled regimes are defined as either regimes that come to power “as a consequence of a successful coup d’état, led by the army, navy, or air force, that remained in power with a military person as the chief executive for at least six months in a given year”39 or regimes “with either a civilian as the chief executive and several military persons in the cabinet or military head of government who nominated a civilian as the head of government and himself worked behind the scenes.”40 Military control was not statistically significant in Poe and Tate’s shorter study but was in their extended study.41 Christian Davenport, who examined negative sanctions, a different form of repression, used three measures of military influence: size of the military, military sector allocations, and direct representation of the military in the government.42 Only

35. Despite some criticism of national GNP data, GNP has continued to dominate as the most appropriate measure of economic development. Alan Heston, A Brief Review of Some Problems in Using National Accounts Data in Level of Output Comparisons and Growth Studies, 44 J. deVeloPment econ. 29 (1994); Jack Donnelly, Human Rights, Democracy, and Development, 21 HUm. rts. Q. 608, 623 (1999).

36. Poe & Tate, Repression, supra note 13, at 853.37. See, e.g., samUel HUntington, tHe soldier and tHe state (1964); R.D. McKinlay, & A.S.

Cohan, A Comparative Analysis of the Political and Economic Performance of Military and Civilian Regimes, 8 comP. Pol. 1 (1975); James Zwick, Militarism and Repression in the Philippines, in tHe state as terrorist: tHe dynamics oF goVernment Violence and rePression (Michael Stohl & George Lopez eds., 1984); Ekkart Zimmerman, Macro-comparative Research on Political Protest, in Handbook oF Political conFlict: tHeory and researcH (Ted Robert Gurr ed. 1986); Poe & Tate, Repression, supra note 13; Davenport, Assessing the Military’s Influence, supra note 32.

38. Poe & Tate, Repression, supra note 13; Poe, Tate & Keith, Repression Revisited, supra note 13.

39. Hamed Madani, Socioeconomic Development and Military Policy Consequences of Third World Military and Civilian Regimes, 1965–1985, 61 (1992)(unpublished Ph.D. dissertation, University of North Texas)(on file with UNT Library).

40. Id.41. This information was not in the shorter study, Poe & Tate, Repression, supra note 13,

but was in the extended study, Poe, Tate & Keith, Repression Revisited, supra note 13.42. Davenport, Assessing the Military’s Influence, supra note 32; Data is not available across

the global set of countries or the complete time period under study here; artHUr s. banks, cross-national time-series data arcHiVe, 1991 (Databanks Int’l CD-ROM, current through 2001).


military sector allocations demonstrated a consistent statistically significant relationship with repression across all of his models.43 In this study, we continue to employ the Poe and Tate measure of military regime as defined above.

Political Democracy: Democracy has consistently been shown to strongly reduce the likelihood of various forms of political repression,44 including the abuse of personal integrity rights.45 Theoretical explanations of the nexus be-tween democracy and repression have tended to focus either on institutional and structural characteristics and/or the values and norms in democracies. Political scientists argue that democratic principles emphasize bargaining, compromise, and elections as the only appropriate or fair means to resolve disagreements.46 These norms socialize democratic leaders to resolve conflict through non-violent means. Political institutions reinforce these norms, but more importantly, scholars argue that political institutions provide the tools for the public to hold government officials accountable for their actions.47 For example, with fully participatory and competitive elections, a potentially abusive leader might feel vulnerable to public discontent at the polls and thus be curbed from abusive practices. Another example could be the curbing of a potentially abusive leader by a system of checks and balances that place judicial or legislative constraints on the executive’s powers.

43. Davenport’s subsequent studies have either not continued to control for military influence or have not reported those results. See Christian A. Davenport, “Constitutional Promises” and Repressive Reality: A Cross-National Time-Series Investigation of Why Political and Civil Liberties are Supressed, 58 J. Pol. 627 (1996); Christian A. Davenport, Liberalizing Event or Lethal Episode?: An Empirical Assessment of How National Elections Affect the Suppression of Political and Civil Liberties, 79 soc. sci. Q. 321 (1998).

44. See, e.g., larry diamond, JUan linz, & seymoUr liPset, democracies in deVeloPing coUntries, Vol. 4 (1988); Conway W. Henderson, Conditions Affecting the Use of Political Repression, 35 J. conFl. resol. 120 (1991); Helen Fein, More Murder in the Middle: Life Integrity Violations and Democracy in the World, 1987, 17 HUm. rts. Q. 170 (1995); Davenport, Assessing the Military’s Influence, supra note 32; Christian Davenport, Multi-Dimensional Threat Perception and State Repression: An Inquiry Into Why States Apply Negative Sanctions, 39 am. J. Pol. sci. 683 (1995); Davenport, “Constitutional Promises,” supra note 43; Davenport, Liberalizing Event or Lethal Episode?, supra note 43.

45. Poe & Tate, Repression, supra note 13; Poe, Tate & Keith, Repression Revisited, supra note 13; Stephen C. Poe et al., The Continuity of Suffering: Domestic Threat and Human Rights Abuse Across Time, in PatHs to state rePression: HUman rigHts and contentioUs Politics in comParatiVe PersPectiVe (Christian Davenport ed., 2000); Zanger, supra note 32.

46. See, e.g., Ted Robert Gurr, The Political Origins of State Violence and Terror: A Theoretical Analysis, in goVernment Violence and rePression, supra note 37, at 45; Henderson, Condi-tions Affecting the Use of Political Repression, supra note 33; Poe & Tate, Repression, supra note 13; William J. Dixon, Democracy and the Peaceful Settlement of International Conflict, 88 am. Pol. sci. reV. 14 (1994); rUdolPH J. rUmmel, PoWer kills: democracy as a metHod oF nonViolence (1997).

47. See, e.g., Gurr, The Political Origins of State Violence and Terror, supra note 46; Philippe C. Schmitter & Terry Lynn Karl, What Democracy Is . . . and Is Not, 2 J. democ. 75 (1991); Poe & Tate, Repression, supra note 13; Dixon, supra note 46; rUmmel, supra note 46; Zanger, supra note 32.


This study uses the most recent polity measure of democracy, Polity IV.48 The choice of the polity measure is also consistent with other recent studies of personal integrity abuses49 and negative sanctions.50 Polity’s institutional democracy indicator is typically employed as an 11-point additive index coded along four dimensions using the following rules: Competitiveness of Political Participation: competitive (3), transitional (2), and factional (1); Competitiveness of Executive Recruitment: elective (2) and transitional (1); Openness of Executive Recruitment: open election (1) or dual (hereditary and election) (1); and Constraint on Chief Executive: executive parity or subordination to legislative or judicial branches (4), intermediate constraints (constraints that fall between parity/subordination and substantial limitations) (3), substantial limitations (2), and intermediate constraints (constraints that fall between substantial limitations and slight to moderate limitations) (1).

This study follows Kristian Gledtisch, Michael Ward, and Keith and uses the components separately for both statistical and theoretical reasons.51 Empirically, each of these studies showed that the components of scale have varying degrees of impact and statistical significance. Additionally, our theoretical concern here is to control for and test differences in colonial legacy with regard to the development of legal systems and democratic

48. See Center for International Development and Conflict Management, Polity IV, available at http://www.cidcm.umd.edu/polity. In order to simplify and facilitate the presentation of the analysis, we have chosen to use only one measure of democracy for this study. We have chosen to drop the Freedom House measure in this analysis for several rea-sons. It has been criticized for being “highly impressionistic, being no more than an estimate by a person who has collected a lot of seemingly relevant information on all of the countries of the world.” John. F. McCamant, A Critique of Present Measures of Human Rights Development and an Alternative, in global HUman rigHts: PUblic Policies, comParatiVe measUres and ngo strategies (Ved P. Nanda, James R. Scarritt, & George W. Shepard eds., 1981). While the measurement has improved over time and is considered less impressionistic, see Poe & Tate, Repression, supra note 13, the measure does include one dimension that may overlap with the behavior captured in the dependent variable. Additionally, the measure is counter-intuitive in that the small score represents a higher a level of political rights and the higher score a lower level of rights. The results produced with this measure have performed nearly identically to both the Vanhanen measure and the polity measure. We did run the full model with the Freedom House measure and the results generally held.

49. Wesley Milner, Steven Poe, & David Leblang, Security Rights, Subsistence Rights and Liberties: A Theoretical Survey of the Empirical Landscape, 21 HUm. rts. Q. 403 (1999); Zanger, supra note 32.

50. Davenport, Multi-Dimensional Threat Perception, supra note 43; Davenport, Assessing the Military’s Effect, supra note 32; Davenport, “Constitutional Promises,” supra note 43; Davenport, Liberalizing Event or Lethal Episode, supra note 43.

51. Kristian S. Gleditsch & Michael D. Ward, Double Take: A Reexamination of Democracy and Autocracy Patterns in Modern Politics, 41 J. conFl. resol. 361 (1997); Linda Camp Keith, Constitutional Provisions for Individual Human Rights (1976–1996): Are They More than Mere “Window Dressing”?, 55 Pol. res. Q. 111 (2002); Linda Camp Keith, International Principles for Formal Judicial Independence: Trends in National Constitu-tions and Their Impact (1976 to 1996), 85 JUdicatUre 194 (2002)


institutions such as an independent judiciary, so it is important to control for the development of executive constraints as well.

IV. LEGAL SYSTEMS

We created dummy variables to designate each type of legal system in sub-Saharan Africa. We used five categories derived from the divisions created by the University of Ottowa Law School’s World Legal System project:

Civil Law Systems: [T]he countries found in this category have drawn mainly on their Roman legal heritage in addition to other sources, and while giving precedence to written law, have resolutely opted for a systematic codification of their ordinary law. Also found in this category are countries, generally of the mixed law variety, that have not resorted to the technique of codifying law but that have retained to varying degrees enough elements of Roman legal construc-tion, “as a written reason,” to be considered affiliated to the civil tradition. On the other hand, we also find countries in this category where Roman influence was weaker but whose law, codified or not, rests on the notion of legislated law which in many ways resembles the systems of countries with a “pure” civil tradition (for example, Scandinavian countries that hold a unique position within the “Romano-Germanic” family).

Common Law Systems: Like that of civil law, the common law system has taken on a variety of cultural forms throughout the world. Notwithstanding the sig-nificant nuances that such diversity can sometimes create, and which political circumstances further accentuate, this category includes political entities whose law, for the most part, is technically based on English common law concepts and legal organizational methods which assign a pre-eminent position to case-law, as opposed to legislation, as the ordinary means of expression of general law. Thus this category includes countries or political entities that may not always have close ties with the English tradition and that sometimes possess an abundance of codes, legislation and non-jurisprudential normative instruments, but for which common law jurisprudence retains its character as the fundamental law (e.g. California).

Customary Law System: Hardly any countries or political entities in the world today operate under a legal system which could be said to be typically and wholly customary. Custom can take on many guises, depending on whether it is rooted in wisdom born of concrete daily experience or more intellectually based on great spiritual or philosophical traditions. Be that as it may, customary law (as a system, not merely as an accessory to positive law) still plays a sometimes significant role, namely in matters of personal conduct, in a relatively high number of countries or political entities with mixed legal systems. This obviously applies to a number of African countries but is also the case, albeit under very different circumstances, as regards the law of China or India, for example.

Muslim Law System: The Muslim legal system is an autonomous legal system which is actually religious in nature and predominantly based on the Koran. In


a number of countries of Muslim persuasion it tends to be limited to personal status, although personal status can be rather broadly defined.

Mixed Legal Systems: The term “mixed,” which we have arbitrarily chosen over other terms such as “hybrid” or “composite,” should not be construed restrictively, as certain authors have done. Thus this category includes political entities where two or more systems apply cumulatively or interactively, but also entities where there is a juxtaposition of systems as a result of more or less clearly defined fields of application.52

V. JUdICIAL INdEPENdENCE

Many commentators have stressed the potential importance of an indepen-dent judiciary in the protection of constitutionally promised human rights.53 A truly independent judiciary should be able to withstand incursions upon individual rights because 1) the courts’ power and fiscal well-being will be protected; 2) the courts will have some ability to review the actions of other agencies of government; and 3) the judges’ jobs will be constitutionally protected. The United Nations sets forth standards for achieving an indepen-dent judiciary in its Basic Principles on the Independence of the Judiciary. In addition, the UN Special Rapporteur on the independence of judges and lawyers, recommended to the Human Rights Commission several general principles for judicial independence.54 Merging the two sets of principles

52. See University of Ottawa Law School website, available at http://www.droitcivil.uottawa.ca/world-legal-systems/eng-monde.php.

53. See, e.g., L.W. H. Ackermann, Constitutional Protection of Human Rights: Judicial Review, 21 colUm. HUm. rts. l. reV. 59 (1989); tHe global exPansion oF JUdicial PoWer (C. Neal Tate & Torbjörn Vallinder eds. 1995); Antonin Scalia, Federal Constitutional Guarantees of Individual Rights in the United States of America, in HUman rigHts and JUdicial reVieW (David M. Beatty ed., 1994); nWabUeze, supra note 23; Penuell M. Maduna, Judicial Review and Protection of Human Rights Under a New Constitutional Order in South Africa, 21 col. HUm. rts. l. reV. 73 (1989); Rosenthal, Afterword, in constitUtionalism and rigHts, supra note 2; Leszek Garlicki, et al., Roundtable Discussion, in constitUtionalism and HUman rigHts: america, Poland, and France (Kenneth W. Thompson & Rett R. Ludwikowski eds., 1991).

54. The principles are as follows: 1. All necessary measures should be taken to respect, protect, and promote the

independence of judges. 2. In particular, the following measures should be taken:

a. The independence of judges should be guaranteed pursuant to the provisions of the Conven-tion and the constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law. Subject to the legal tradition of each State, such rules may provide, for instance, the following:

i. decisions of judges should not be subject to any revision outside any appeals procedures as provided by law;

ii. the terms of office of judges and their remuneration should be guaranteed by law;

iii. no organ other than the courts themselves should decide on its own competence, as defined by law;


produces the following criteria for an independent judiciary:55

1. Terms of office and remuneration are constitutionally guaranteed, regardless of whether judges are appointed or elected.

iv. with the exception of decisions on amnesty, pardon or similar, the Government or the administra-tion should not be able to take any decision which invalidates judicial decisions retroactively.

b. The executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges.

c. All decisions concerning the professional careers of judges should be based on objective criteria and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of government and administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.

However, where the constitutional or legal provisions and traditions allow judges to be appointed by government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above. These guarantees could be, for example, one or more of the following:

i. a special independent and competent body to give the Government advice which it follows in practice; or

ii. the right for an individual to appeal against a decision to an independent authority; or

iii. the authority which makes the decision safeguards against undue or improper influ-ences.

d. In the decision-making process, judges should be independent and be able to act without any restrictions, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their inter-pretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary.

e. The distribution of cases should not be influenced by the wishes of any party to a case or any person concerned with the results of the case. Such distribution may, for instance, be made by drawing lots or a system for automatic distribution according to alphabetical order or some similar system.

f. A case should not be withdrawn from a particular judge without valid reasons, such as cases of serious illness or conflict of interest. Any such reasons and the procedures for such withdrawal should be provided for by law and may not be influenced by any interest of the Government or administration. A decision to withdraw a case from a judge should be taken by an authority which enjoys the same judicial independence as judges.

3. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

Report of the Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisoning, submitted pursuant to Commission on Human Rights Resolution 1995/36, Comm’n on Hum. Rts., 52d Sess., Provisional Agenda Item 8, U.N. Doc. E/CN.4/1996/37 (1999), ¶19; see also United Nations Basic Principles on the In-dependence of the Judiciary, available at http://www.ohchr.org/english/law/indjudiciary.htm.

55. Id. Items 1–4 are principles that appear in both the UN Basic Principles and the Report of the Special Rapporteur (at least in general form). The fifth item is strictly from the United Nations Basic Principles and the last two items are strictly from the Special Rapporteur’s report.


2. The decisions of judges are subject to any revision outside any ap-peals procedures provided for by law.

3. The courts have exclusive authority to decide on their own compe-tence, as defined by law—their decisions are made without any restrictions, improper influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

4. The courts have jurisdiction over all issues of a judicial nature. This criterion seems to relate to the criterion that everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. This criterion could be condensed to the requirement that civilians not be tried in military courts or exceptional courts.

5. The courts must have adequate resources. 6. The executive and legislative powers should ensure that judges are

independent and that steps are not taken which could endanger the inde-pendence of judges.

7. The selection and career of judges should be based on merit: quali-fications, integrity, ability, and efficiency. The authority making the decision on the selection and career of judges should be independent of government and administration. If the constitutional or legal provisions and traditions allow judges to be appointed by government, there should be guarantees to ensure that the procedures to appoint judges are transparent and inde-pendent in practice and that the decisions to appoint should be based on the above criteria.

Gerard Blasi and David Cingranelli developed an index of judicial independence that overlaps substantially with the above list. Their index measures whether the judiciary 1) are housed in a separate branch; 2) are fiscally autonomous; 3) have the power of judicial review of the actions of the legislative and executive branches; 4) have life tenure (at least for the highest level judges); 5) have restricted removal; 6) are organized in a hierarchical system; 7) hold public hearings; and 8) are professional judges.56

The most notable difference between the UN principles and Blasi and Cingranelli’s index is the latter’s inclusion of judicial review, which is not explicitly specified in the UN lists. In fact, authorities disagree as to whether judicial review is a power that contributes to an independent judiciary or whether an independent judiciary is a necessary component for the real exercise of judicial review.57 The operationalization of judicial independence that we offer in the next section includes judicial review as an indicator, since it has been strongly argued to be a substantial factor in the protection

56. Gerard J. Blasi & David L. Cingranelli, Do Constitutions and Institutions Help Protect Human Rights? in Human RigHts and developing CountRies (David Cingranelli ed., 1996).

57. Compare id.; Rosenthal, Afterword, supra note 52.


of human rights, particularly during periods of crisis or instability.58 Our hypothesis is that the constitutional guarantee of an independent judiciary will increase state respect for the human right to personal integrity.

The efforts of the world’s constitution makers to establish an indepen-dent and effective judiciary were assessed by coding the presence of nine indicators. These are:

Guaranteed Terms. The constitution guarantees terms of office, regard-less of whether judges are appointed or elected, and restricts removal of judges.

Decisions Final. The decisions of judges are not subject to any revision outside any appeals procedures provided by law.

Exclusive Authority. The courts have exclusive authority to decide on their own competence, as defined by law—their decisions are made without any restrictions, improper influences, inducements, pressures, threats or interfer-ence, direct or indirect, from any quarter or for any reason.

No Exceptional or Military Courts. The courts have jurisdiction over all issues of a judicial nature and civilians are tried by ordinary courts or tribunals, not military or exceptional courts.

Fiscal Autonomy. The courts are fiscally autonomous. The salaries of their judges and/or their annual budgets are protected from reduction by the other branches.

Separation of Powers. The courts are housed in a separate branch from the executive and legislative powers.

Enumerated Qualifications. The selection and career advancement of judges are based on merit qualifications, e.g., integrity, ability, and ef-ficiency.

Judicial Review. Courts exercise judicial or constitutional review of legislative and executive branches.59

Hierarchical system. Courts are structured in multiple layers with the high-est level court exercising final control/review of lower court decisions.

The presence in the constitutions of each of these components of judicial independence and effectiveness was coded as follows:

58. international commission oF JUrists, states oF emergency: tHeir imPact on HUman rigHts (1983); Ackermann, supra note 52; Maduna, supra note 52; sUbrata roy cHoWdHUry, rUle oF laW in a state oF emergency (1989).

59. In many constitutions it was easy to identify the constitutional provision for judicial re-view because the document explicitly stated that courts exercise “constitutional review” or “judicial review.” In other cases, we used the following definition as the standard for determining whether constitutional or judicial review existed:

Right and duty conferred on a court or particular courts of a country to interpret authoritatively the constitution of that country, to decide authoritatively the constitutionality of laws, executive and administrative acts, and in appropriate cases, to declare such laws and acts invalid and un-enforceable when they conflict with the country’s constitution.

Ackermann, supra note 53, at 60.


2 = constitution provides for it fully and explicitly;1 = constitution provides for it somewhat or provides for it vaguely,

but not fully; 0 = constitution does not provide for it. In addition, two variables were coded -1 for the presence of provisions

that are specifically designed to counter judicial independence and effec-tiveness: no exceptional courts (4 above) was coded -1 for constitutions that specifically allowed civilians to be tried in military courts or explicitly allowed the formation of exceptional courts; and judicial review (8 above) was coded -1 for constitutions that gave the power of constitutional review to another branch of government such as the executive or the legislature.60

V. PRoVISIoNS foR STATES of EMERGENCY

In order to test the hypotheses outlined above, we used four indicators of constitutional regulation of states of emergency. Data were gathered by analyzing the works of Albert Blaustein61 and Gisbert Flanz.62

1) Legislative Declaration. This variable is coded 2 = responsibility for declaring the state of emergency is given explicitly to the legislative branch; 1 = states of emergency (declared by the executive) are explicitly subject to confirmation by the legislature; 0 = no mention of who has the power to declare such a state; and -1 = the executive branch is explicitly given the power to declare a state of emergency with no mention of a role for the legislature or courts.

2) Cannot Dissolve Legislature. This variable is coded 2 = the legislature may not be dissolved during the emergency or meets “by right”; 1 = vague provision for legislature meeting, but no explicit prevention from dissolving the legislature (i.e., may say that legislature can prolong length of session or can reconvene); 0 = no mention of dissolving legislature in regard to states of emergency; and -1 = automatically suspends the legislature during a state of emergency or gives the executive explicit power to do so.

3) Duration Limited. This variable is coded 2 = duration of the emergency is specified for a set time period and extensions are subject to legislative approval; 1 = duration is specified or legislative approval is specified but not both; and 0 = no mention of duration or extension process.

4) Non-Derogable Rights. This is a dichotomous (or binary) variable coded 1 = constitutions that give a list of non-derogable rights or include

60. The data sources for these variables come from albert P. blaUstein, constitUtions oF tHe World (1993); gisbert H. Flanz, constitUtions oF tHe coUntries oF tHe World (1997).

61. blaUstein, supra note 60, at 70–71.62. Flanz, supra note 60.


a statement that certain rights/freedoms cannot be revoked during states of emergency, and 0 = otherwise.

VI. ANALYSIS

Table One presents a comparison of differences in the levels of personal integrity abuse among the British and French former colonies from 1977–2001. The percentages represent country-years as the data are pooled across countries and time. The hypothesis that British-legacy countries would have better human rights behavior than French-legacy countries is unsupported by these bivariate data. Instead, the overall pattern that emerges is that countries with French colonial legacy achieve better human rights scores than those with a British colonial legacy. On the personal integrity abuse scale, the French-legacy countries earn a mean of 2.39 compared to 2.65 in the British-legacy set of countries.

There is a 3 percent difference in regard to the percentage of country-years in which countries achieve the best level of human rights behavior. This is true when the countries are under a secure rule of law; people are not imprisoned for their views; torture is rare or exceptional; and political murders are extremely rare: 13.1 percent in the French-legacy countries, as compared to 10.6 percent in the British-legacy countries. The difference is even larger as we move up with scale, with an approximately 6 percent higher number of French-legacy country-years achieving a level two score: 47 percent to 41.8 percent and an approximately five percent difference at level three: 30.2 percent French-legacy and 25.8 percent British-legacy.

Ultimately, we see that over 90 percent of the French-legacy country-years achieve at least a moderate level of human rights protection during this time

british french 1 10.6 10.6 13.1 13.1 2 41.8 52.4 47.0 60.1 3 25.8 78.2 30.2 90.3 4 15.7 93.9 8.1 98.4 5 6.1 100.0 1.6 100.0Mean 2.65 2.39

Chi-square 299.5 P < .0001

Source: data generated by authors.

TAbLE 1 Level of Personal Integrity Abuse by Colonizer

LEVEL % Level Cum % % Level Cum %


period, compared to only 78 percent of the British-legacy countries. While only 1.6 percent of the French-legacy countries earn the highest abuse score (level five), over 6 percent of the British-legacy countries are designated as those in which imprisonment, torture, disappearances, and political murder are so extensive and such a common part of every day life that the threat extends to the entire population.

Table Two reflects the impact of the British and French colonial experi-ences in a controlled model for personal integrity. We find that both colonial experiences produced a negative effect on human rights abuse relative to those countries that had other colonial experiences (such as Portuguese, German, or Belgian). The coefficients produced by the French experience are slightly larger than that of the British experience (-.24 compared to -.19, respectively). Of the four democracy measures, only competitiveness of executive recruitment is statistically significant (coefficient of -.09, p < .07).63 Interestingly, among sub-Saharan African countries, economic de-velopment has no observable impact on human rights abuse of this nature. Population size is the only other control variable that affects human rights behavior (coefficient .09, p < .0001). The amount of variation explained in the model is moderate, 55 percent.

Table Three presents the comparison of levels of personal integrity abuse between the different legal system types. There are no purely common law systems in sub-Saharan Africa; rather most states have mixed systems combining two or more elements. This makes it difficult to directly test the hypothesis that common law system countries would have better human rights behavior than civil code system countries. To account for the mixed systems, we first examine human rights behavior across the various legal system types. Table Three reports the mean human rights abuse score and the distribution of abuse scores by system type. First, when we compare mean human rights abuse across the legal system types, we find that the means range from 2.21 to 3.92, with the mean for the entire set of sub-Saharan states being 2.61.

Pure civil law countries score the second lowest on the abuse scale, 2.38. The legal system type that scores the lowest is the Muslim-Civil mixed system, 2.21. The most severe score is earned by the Muslim-Civil-Common mixed system type, 3.92. It is hard to discern general trends in regard to common law systems because of the mixed nature of the systems, but one clear trend is that any system with a common law component earns abuse scores that are higher (worse) than the overall mean, with only one exception (the Common-Muslim-Customary mixed system). Of the seven systems with a civil law component, three fall above the average (including the highest score in the data) and three below (including the lowest score in the data),

63. The marginal level of statistical significance employed by this study is p < .10.


with one at 2.62 which is roughly the general mean. Of the four mixed sys-tems with a Muslim law component, three fall well below the overall mean. Of the four mixed systems with a customary law component, one half fall below and one half above the mean with a fairly wide distribution.

To further test the impact of legal systems we next tested each system type as a dummy variable in the full personal integrity model. The coef-ficients produced by each dummy variable are reported in Table Four. The coefficients for the full models are not reported due to space constraints but may be obtained from the authors. Only two of the legal systems produce statistically significant effects when included individually in the personal integrity model: the Civil, Muslim, and Customary Mixed system (coefficient of .25) and the Muslim, Civil, and Common Law Mixed system (coefficient of .36). The direction of the coefficient suggests that these systems are more likely to produce greater human rights abuse than the other system types, with the difference produced in abuse scores being about one-fourth to one-third of one level.

In order to further test the hypothesis that common law systems are more likely to have better human rights, we tested a variable that controlled for any state with a common law component and one that controlled for any state with a civil law component. These were each tested individually in the full model. The common law component produced a negative effect (-.03) on human rights abuse but was not statistically significant. However, the civil law produced a small positive effect (.06) that was marginally statistically

Lagged Personal Integrity Abuse 0.64 0.04 0.0001French Colonial Legacy -0.24 0.08 0.001British Colonial Legacy -0.19 0.07 0.01Regulation of Executive Recruitment -0.01 0.06 0.42Competitiveness of Executive Recruitment -0.09 0.06 0.07Openness of Executive Recruitment -0.01 0.02 0.46Constraints of Executive 0.01 0.02 0.34Economic Standing 0.01 0.01 0.46Military Regime -0.01 0.01 0.28Population Size 0.09 0.02 0.0001Constant -0.22 0.25 0.18 R-squared 55.0 Wald Chi-sq 952.98 p < .0001


TAbLE 2 Personal Integrity Model 1997–2001

Coefficient Panel Corrected SE p


1 21.7 21.7 51.9 51.9 7.9 7.9 2 41.3 63.0 24.0 75.9 43.0 50.9 3 19.6 82.6 6.7 82.6 28.1 79.0 4 12.0 94.6 12.5 95.1 13.9 92.9 5 5.4 100.0 4.8 99.9 7.1 100.0Mean 2.38 2.94 2.69

TAbLE 3 Level of Personal Integrity Abuse by Legal System

LEVEL % Level Cum % % Level Cum % % Level Cum %

Civil Civil/ Civil/ Common Customary


Muslim Common/ Civil/ Civil Customary Muslim/ Customary

1 0.0 0.0 6.9 6.9 0.0 0.0 2 51.5 51.5 45.8 52.7 0.0 0.0 3 36.4 87.9 33.3 86.0 36.0 36.0 4 10.6 98.5 13.9 99.9 36.0 72.00 5 1.5 100.0 0.0 99.9 28.0 100.0Mean 2.62 2.54 3.92

Source: data generated by authors

1 14.9 14.9 3.6 3.6 12.5 12.5 2 53.2 68.1 40.4 44.0 45.8 58.3 3 27.7 95.8 29.8 73.8 33.3 91.6 4 4.3 100.1 16.1 89.9 8.3 99.9 5 0.0 100.1 10.1 100.0 0.0 99.9Mean 2.21 2.89 2.38


Civil/ Common/ Muslim/ Common/ Muslim/ Civil/ Customary Customary

significant (at the .10 level). As a whole, the results produce rather limited evidence of a harmful effect by civil code systems.

In attempt to further examine the differences in colonial legacies in Sub-Saharan Africa, we test Henry Carey’s hypothesis that British colonies would be more likely to develop democratic institutions such as an independent judiciary. Table Five examines the level of formal judicial independence in the British-legacy set of countries and the French-legacy set of countries.


Civil Law System .04 .08 .30Civil and Common Law Mixed System -.08 .10 .19Civil and Customary Law Mixed System .01 .05 .43Muslim and Civil Law Mixed System -.09 .13 .23Common and Customary Law Mixed System -.04 .06 .25Civil Muslim and Customary Law Mixed System .25 .15 .04Civil Common and Customary Law Mixed System .02 .10 .42Common Muslim and Customary Law Mixed System -.06 .08 .23Muslim Civil and Common Law Mixed System .36 .13 .003

All Systems with Civil Law Component .06 .04 .10All Systems with Common Law Component -.03 .04 .24


TAbLE 4 Personal Integrity Model 1997–2001 (Coefficients produced

in separate and fully controlled model)


british french -2 0 0 0 0 -1 3.7 3.7 0 0 0 25.8 29.5 34 34 1 0.0 29.5 4.0 38.0 2 2.5 32.0 3.7 41.7 3 6.9 38.9 3.3 45.0 4 9.0 47.9 3.0 48.0 5 0.0 47.9 0.0 48.0 6 8.0 55.9 3.3 51.3 7 13.0 68.9 1.9 53.2 8 12.0 80.9 10.0 63.2 9 2.7 87.9 13.5 80.2 10 4.3 87.9 3.5 80.2 11 0.0 87.9 6.5 86.7 12 4.8 92.7 5.4 92.1 13 1.6 94.3 1.4 93.5 14 2.7 97 6.8 100.3 15 0.5 97.5 0 100.3 16 1.6 99.1 0 100.3

Chi- Sq 162.7 P <. 0001 241.7 P < .0001MEAN 5.1 5.5


TAbLE 5 Judicial Independence Index

% Level Cum % % Level Cum %


As described in the previous section, we are examining nine elements of judicial independence. For the analysis reported here, we constructed an additive index to measure the overall level of constitutional provision for judicial independence. The scale ranges from -1 to 18.

The analysis here does not support Carey’s hypothesis. Instead, we find that on average the French-legacy set of countries achieve a higher score on judicial independence than the British ones: 5.5 percent compared to 5.1 percent. When we examine the data closely several patterns emerge. First, only the British-legacy countries earn negative scores on formal judicial in-dependence, meaning the constitutions provide some institution other than the judiciary the power of constitutional review and/or the constitutions explicitly allow or endorse the use of exceptional courts. Second, a larger percentage of French-legacy country-years have no constitutional provisions for judicial independence than the British set: 34 percent compared to 29.5 percent. However, we also see that approximately 69 percent of the British-legacy countries earn scores of eight or less, compared to only 53 percent of the French set. Over 37 percent of the French-legacy countries earn scores of 10 or more, while only 18 percent of the British-legacy countries do.

When we examine the constitutional provisions for judicial independence individually, again, we can identify some clear patterns. These data are re-ported in Table Six. First, one of the more interesting patterns to emerge is the lack of formal provision for judicial independence in the former British colonies—in only 10 percent of the country-years is there any level of provi-sion, compared to over 58 percent of the former French colonies that have some level of formal provision for judicial review. A second stark contrast is the ban against exceptional courts. In all country-years in the French-legacy countries, we find such a ban, but in the British-legacy countries only 20 percent have the exceptional court ban. Another contrast is that over 65 percent of the former French colonies have no provision for protected terms for the judiciary, compared to only 35 percent of the former British colo-nies. On the other hand, 90 percent of the former British colonies have no provision for the courts’ decisions to be final and not subject to revision, compared to only 62 percent of the French-legacy countries. We test the hypothesis that these institutions behave differently in the former colonies later in the article.

In our next attempt to further distinguish the colonial legacies in sub-Saharan Africa, we examine the states of emergencies clauses and test the hypothesis that former British colonies would have more specific constitu-tional checks during states of emergencies. As with the elements of judicial independence, we also created an additive index to measure the degree to which the constitutional provisions protected against government abuse during states of emergency. The index ranges from -2 to 8. These data are reported in Table Seven. The average score for both sets of countries is quite


Judicial Review Provision

% Level Cum % % Level Cum % british french

2 3.2 3.2 49.8 49.8 1 6.9 10.1 8.6 58.4 0 89.9 100 41.6 100 -1 0 100 0 100

Guaranteed Terms Provision


2 61.44 61.44 26.1 26.1 1 3.2 64.64 9.4 35.5 0 35.4 100.04 65.5 101

Finality of Decision Provision


2 10.1 10.1 37.4 37.4 1 0.5 10.6 0 37.4 0 89.4 100 62.6 100

Exclusive Authority Provision


2 11.2 11.2 30.5 30.5 1 9.3 20.5 11.2 41.7 0 79.5 100 58.4 100.1

Constitutional Ban Against Exceptional Courts


2 0 0 2.6 2.6 1 0 0 97.4 100 0 92.8 92.8 0 100 1 7.2 100 0 100 100 100

Fiscal Autonomy Provision


2 14.1 14.1 0.2 0.2 1 0 14.1 0 0.2 0 85.9 100 99.8 100

TAbLE 6 formal Judicial Independence


Separation of Powers Provision


2 31.1 31.1 40.7 40.7 1 10.4 41.5 13.5 54.2 0 58.5 100 45.8 100

Enumerated Qualifications Provision


2 50.5 16.5 16.5 16.5 1 0 50.5 12.8 29.3 0 49.5 100 70.7 100

Hierarchical Structure


2 60.1 16.5 48.1 48.1 1 3.7 63.8 0 48.1 0 36.2 100 51.9 100


-2 0.0 0.0 0.0 0.0 -1 3.5 3.5 10.0 00.0 0 51.6 55.1 32.3 42.3 1 6.7 61.8 6.3 48.6 2 17.29 79.1 17.4 66.0 3 5.3 84.4 27.9 94.0 4 14.6 98.9 1.4 95.3 5 1.1 100.0 2.1 97.4 6 0.0 100.0 2.6 100.0

MEAN 1.3 1.5


TAbLE 7 State of Emergency Index



Legislative Declaration Provision


2 6.1 6.1 54.9 54.9 1 19.7 25.8 29.5 84.4 0 39.4 65.2 13.0 97.4 -1 34.8 100.0 2.6 100.0

Limited Duration Provision


2 38.0 38.0 45.8 45.8 1 19.2 57.2 2.8 48.6 0 42.8 100.0 51.4 100.0

Ban against Dissolving Legislature


2 0.0 0.0 29.1 29.1 1 16.7 16.7 17.7 46.8 0 83.2 99.9 53.3 100.1 -1 0.0 99.9 0.0 100.1

List of Derogated Rights Provision


1 91.5 91.5 1.6 1.6 0 8.5 100.0 98.4 100.0


TAbLE 8 Provisions for States of Emergency

low, with British-legacy states having the lower mean; 1.3 compared to 1.5 for French-legacy states. In over half of the country-years, British-legacy states have no constitutional protections or checks. Less than one-third of the country-years French-legacy states do not have these protections. In 34 percent of the country-years, French-legacy states have scores of three or higher, compared to only 12 percent of the British-legacy states.

As with elements of judicial independence, we see rather stark differ-ences in the provisions adopted for states of emergencies between former British and French colonies. The most drastic difference is in the adopted


list of derogable rights. In 92 percent of the country-years of British-legacy states, we find such lists, compared to only 1.6 percent in the French-legacy states. Interestingly, it is in the former French colonies that we find the strongest provision for legislative rather than executive declaration of states of emergencies: in the former French colonies we find some level of provision 84 percent of the country-years (55 percent have the highest level of protection) compared to only 26 percent in the former British colonies (where only 6 percent have the highest level of protection).

Again, it is interesting that it is the former French colonies that have the stronger protection for the legislature during states of emergency rather than the British ones: 47 percent of the French compared to 17 percent of the British-legacy states have bans against dissolving the legislature during a state of emergency. Constitutional provision for limited duration of states emergency are not as far apart: 57 percent for British and 48 percent for French. Overall, the evidence suggests that counter to our hypothesis French-legacy states have stronger protections during states of emergency.

Next, we returned to the multivariate explanatory human rights model. We tested whether the impact on French or British colonial legacy remained when we controlled for the provisions for judicial independence and states of emergency. Table Nine reports these results. The impact of the colonial legacies remain statistically significant but the size of their impact decreases slightly: the coefficient for French colonial legacy is reduced from -.24 to -.22 and the coefficient for British colonial legacy is reduced from -.19 to -.16. None of the elements of judicial independence produce a statistically significant effect on human rights behavior of this nature.

However, we must keep in mind the limitation of our model in that it measures only formal provisions for judicial independence and does not measure the level to which this status is actually achieved in the various states. Thus, the failure to observe an influence may result from our inability to measure judicial independence directly at this time. Additionally, as An-Nai’im has cautioned, these conditions and principles are likely to develop only through a process of trial and error, over an extended period of time.64 The time period under study here may not yet be long enough to allow for this process to be observed.

Three of the four provisions for states of emergency are statistically significant. The provision for legislative declaration of states of emergency produces a coefficient of -.06 and the provision for limited duration of the state of emergency produces a coefficient of -.16. These statistics suggest that going from a constitution with no provision for either clause to one with full provision of both clauses would likely decrease the country’s human rights abuse score by .88, almost one level on the five-point scale. The list

64. An-na’im, supra note 2, at 7–8.


Lagged Personal Integrity Abuse 0.59 0.04 0.0001French Colonial Legacy -0.22 0.08 0.002British Colonial Legacy -0.16 0.08 0.03Guaranteed Terms 0.01 0.04 0.37Finality of Decisions 0.02 0.04 0.33Exclusive Authority -0.02 0.06 0.36Ban against Exceptional Courts -0.01 0.07 0.46Fiscal Autonomy -0.02 0.06 0.38Separation of Powers -0.03 0.04 0.22Enumerated Qualifications 0.04 0.04 0.11Judicial Review 0.06 0.05 0.12Hierarchical Structure 0.01 0.03 0.33Legislative Declaration -0.06 0.04 0.04Limited Duration -0.16 0.04 0.0001Ban against Dissolving Legislature 0.05 0.05 0.14List of Derogated Rights 0.35 0.13 0.004Regulation of Executive Recruitment -0.03 0.06 0.34Competitiveness of Executive Recruitment -0.09 0.07 0.08Openness of Executive Recruitment -0.01 0.02 0.47Constraints of Executive 0.04 0.03 0.08Economic Standing -0.02 0.02 0.08Military Regime -0.01 0.01 0.28Population Size 0.11 0.02 0.0001Constant -0.39 0.27 0.07

R-squared 57.0 Wald Chi-sq 1969.56 p < .0001


TAbLE 9 Personal Integrity Model 1997–2001


of non-derogable rights produces a harmful effect on states human rights behavior as we have seen in past studies: coefficient of .35.

Next, we more specifically test whether elements of judicial indepen-dence and states of emergency provisions work better in British-legacy states than French ones. These results are reported in Table Ten. A couple of interesting patterns emerge. Overall, the elements of judicial independence have little impact on human rights abuse: only two elements are statistically significant in each set of countries. Judicial review is the only shared ele-ment but its effects are in opposite directions. In the former British colonies, the provision for guaranteed terms produces a moderate negative impact (-.30) on human rights abuse, whereas in the former French colonies the provision for finality of judicial decisions produces a smaller but negative impact (-.16). Interestingly, very few former French colonies had provision for guaranteed terms, only 35 percent compared to 65 percent of former


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British colonies and very few former British colonies have provisions for finality in decision making: 11 percent compared to 37 percent of the for-mer French colonies.

The most interesting difference is in regard to judicial review, which was tested at the higher two-tail level of statistical significance because of the strong alternative hypothesis. This provision produces a large positive impact (.59) in the former British colonies, which suggests that a change from no provision of judicial review to full provision would increase human rights abuse by approximately one and one-quarter of a level. In French-legacy countries, we see the opposite effect but in a smaller magnitude—coeffi-cient of -.16, which would suggest a similar change in constitutions would improve abuse scores by about one-third of a level.

In regard to the states of emergency provisions, we find that only one provision works across both sets of countries: the provision that requires a legislative (rather than executive) declaration of a state of emergency. The impact is negative and moderate in size (-17. and -.16). In the former French colonies, the provision that delineates the duration of a state of emergency has the unintended harmful effect of increasing the probability of abuse (.24). We have found this effect to happen in the global set of countries. The polity executive constraint measures behave differently in the British and French sets of countries. In the British-legacy countries, regulation of executive recruitment produces a moderate negative impact, as expected (-.26) and in the French legacy countries, openness of executive recruitment produces a small negative impact (-.07). Overall, the models perform better in British legacy countries, explaining 64 percent of the variation in human rights abuse compared to only 47 percent in the French legacy countries.

VII. CoNCLUdING REMARkS

This article has examined the extent to which the British and French colo-nial legacies influence the human rights behavior of post-colonial African states. Our study was influenced by earlier research and by theorists that suggest that British and French colonialism left different legacies for their former colonies. We have examined three areas where the literature suggests different colonial experiences for former British and French colonies: legal systems, formal provisions for judicial independence, and emergency powers. Because of their close links to human rights and the rule of law, we wanted to find out whether these elements can account for differences in human rights practices among former French and British African colonies.

Our findings show very little support that different colonial legacies in those three areas affect the level of state abuse of personal integrity in sub-Saharan Africa. We find no solid evidence, for example, that common law


system countries have better human rights behavior than civil code system countries. Nor is there any support for the propositions that former French colonies would have less constitutional provisions for judicial independence and checks against the executive during times of emergency than English colonies. Indeed, contrary to expectations, it is the French-legacy states that have stronger protections for emergency powers, suggesting perhaps recogni-tion of the broad powers of the president in the bequeathed French political system and the need to curtail some of those powers. Likewise, we find little evidence that these elements affect their human rights behavior.

Again, we want to make clear what our objective was in this study. We did not, and would not, suggest that colonialism has not affected either di-rectly or indirectly many of the problems and practices of the postcolonial state in Africa. There is more than enough documentation that suggests oth-erwise. What we sought out to do was examine whether British and French colonialism left different legacies in sub-Saharan Africa, and whether these legacies affect post-colonial African states’ human rights behavior. What our findings show is that there is a limit to which the impact of colonial-ism on the behaviors of the postcolonial African state can and should be attributed to differences in the British and French colonial legacies. At least in the areas of human rights, those differences matter very little. In a way, this bolsters the argument of scholars such as Prempeh, who have suggested that formal legal systems and constitutional provisions may have little effect on the behavior of African states.

Still, there is one significant finding from this study, and that is the evi-dence that former French colonies have better human rights records than former English colonies. As our work suggests this difference cannot be accounted for by colonial legacies in legal systems and constitutionalism, future studies should continue to seek other explanations, perhaps such as the heterogeneity of ethnicity, the process through which the states became independent, the level of civil and international war and other domestic threats, and level external support (such as foreign aid) and foreign inter-ference.

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HUMAN RIGHTS QUARTERLY - University of Texas at Dallaslck016000/HRQSub.pdf · Human Rights Quarterly 29 ... that common law system countries ... that “first and foremost” constitutionalism