Law, Democracy and Governance Syllabus 2016

UNIVERSITY OF NAIROBI
SCHOOL OF LAW
BACHELOR OF LAWS (LL.B.) PROGRAM
LAW, DEMOCRACY AND GOVERNANCE

2016
COURSE MATERIALS
COURSE INSTRUCTOR
PROF. MIGAI AKECH
Prof. Migai Akech Law, Democracy and Governance Syllabus 2016

UNIVERSITY OF NAIROBI
GPR 422: LAW, DEMOCRACY AND GOVERNANCE
ACADEMIC YEAR 2016
PROF. MIGAI AKECH

COURSE DESCRIPTION

This course examines the role of law in shaping democracy and governance, that is, the
involvement of citizens in determining how the state rules them, and how they rule
themselves. In both contexts, the course seeks to establish how governance manifests itself,
whether it is democratic, and whether law limits it. The course, therefore, proceeds on the
premise that governance should not only be democratic, but should also adhere to the rule of
law ideal, meaning that law should limit it. The course seeks to realize its three objectives by
examining the manifestations of governance in the regulation of various facets of public and
private/personal life, namely politics, finance, morality, the media, and the resolution of
disputes.

SYLLABUS

Class 1 - 3: Concepts: Democracy, Governance, Rule of Law
Themes: Democracy; the contribution of liberal theory (or liberalism) to the
practice of democracy; the rule of law; critiques of liberal theory.

Readings

ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 1-33 (Yale University Press,
1989).

MARC F. PLATTNER, DEMOCRACY WITHOUT BORDERS? GLOBAL
CHALLENGES TO LIBERAL DEMOCRACY 3-14, 37-70 (Rowman & Littlefield
Publishers, 2008).

JOHN STUART MILL, ON LIBERTY AND OTHER ESSAYS 5-19 (Oxford, 2008).

BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY
32-72, 91-101, 114-126, 137-141 (Cambridge University Press, 2004).

1
David Williams and Tom Young, Governance, the World Bank and Liberal
Theory, XLII POLITICAL STUDIES 84 (1984).

Francis Fukuyama, What is Governance?, 26 GOVERNANCE 347 (2013).

Class 4: The Idea of Regulation
Themes: What is regulation; objectives of regulation; types of regulation state
versus self/market regulation; economic v social regulation.

Readings

BARRY M. MITNICK, THE POLITICAL ECONOMY OF REGULATION: CREATING,
DESIGNING, AND REMOVING REGULATORY REFORMS 1-20 (Columbia
University Press, 1980).

B. Rasmusen, Economic Regulation and Social Regulation, American Law &
Economics Association Annual Meeting, Paper No. 47, 2005.

Eric Windholz and Graeme Hodge, Conceptualizing Social and Economic
Regulation: Implications for Modern Regulators and Regulatory Activity,
Monash University, Faculty of Law, Research Paper No 2012/05.

Andrei Shleifer, Understanding Regulation, 11 EUROPEAN FINANCIAL
MANAGEMENT 439 (2005).

Migai Akech, Public Law and the Neoliberal Experiment in Kenya: What Should
the Public Interest Become?, Unpublished JSD Dissertation, New York
University School of Law 211-222, 224-234, 260-286 (2004).

Class 5 - 6: Regulating Politics
Themes: Democracy in divided societies the perennial quest for legitimate
governance; electoral management bodies; political parties; the mis(use) of
law in politics.

Readings

Arend Lijphart, Constitutional Design for Divided Societies, 15 JOURNAL OF
DEMOCRACY 96 (2004).

Richard S. Katz, Democratic Principles and Judging Free and Fair, in Michael
D. Boda, (ed), Revisiting Free and Fair Elections, An International Round Table on
Election Standards organized by the Inter-Parliamentary Union, Geneva,
November 2004, 17-39.

2
Jorgen Elklit and Andrew Reynolds, Judging Elections and Election

Management Quality by Process, in Michael D. Boda, (ed), Revisiting Free and
Fair Elections, An International Round Table on Election Standards organized by
the Inter-Parliamentary Union, Geneva, November 2004, 53-73.

Joel D. Barkan, James D. Long, Karuti Kanyinga, Karen E. Ferree, and Clark
Gibson, Kenyas 2013 Elections: Technology is Not Democracy, 24 JOURNAL
OF DEMOCRACY 156 (2013).

Migai Akech, Constraining Government Power in Africa, 22 JOURNAL OF
DEMOCRACY 96 (2011).

Class 7-8: Regulating Finance
Themes: regulatory objectives; regulation of bank and non-bank financial
institutions; regulation of mobile banking.

Readings

Darryl Biggar and Alberto Heimler, An Increasing Role for Competition in the
Regulation of Banks, International Competition Network, Antitrust
Enforcement in Regulated Sectors Sub Group 1, June 2005.

Francis M. Mwega, Financial Regulation in Kenya: Balancing Inclusive Growth
with Financial Stability, Overseas Development Institute (ODI), Working Paper
407, November 2014.

Abd Elrahman Elzahi Saaid Ali, The Regulatory and Supervision Framework of
Microfinance in Kenya, 3 INTERNATIONAL JOURNAL OF SOCIAL SCIENCE
STUDIES 123 (2015).

Matu Mugo, Regulation of Banking and Payment Agents in Kenya, 6
INNOVATIONS: TECHNOLOGY, GOVERNANCE, GLOBALIZATION 125 (2011).

Catia Batista, Felix Simione and Pedro C. Vicente, International Experiences of
Mobile Banking Regulation, International Growth Centre, Brief 36012, January
2012.

Class 9-10: Regulating Personal/Private Life
Themes: rationales, forms and consequences of the regulation of personal life
in a plural legal system.

Readings

3
Collette Akoth Suda, Formal Monogamy and Informal Polygyny in Parallel:

African Family Traditions in Transition, University of Nairobi, inaugural lecture,
2007.

Johanna E. Bond, Culture, Dissent and the State: The Example of
Commonwealth African Marriage Law, 14 YALE HUMAN RIGHTS AND
DEVELOPMENT JOURNAL 1 (2011).

Winifred Kamau, Law, Pluralism and the Family in Kenya: Beyond Bifurcation of
Formal Law and Custom, 23 INTERNATIONAL JOURNAL OF LAW, POLICY
AND THE FAMILY 133 (2009).

Jackton B. Ojwang and Emily Nyiva Kinama, Woman-to-Woman Marriage: A
Cultural Paradox in Contemporary Africas Constitutional Profile,
VERFASSUNG UND RECHT IN BERSEE 412 (2014).

L.N.W. v Attorney General and 3 others, Nairobi High Court, Constitutional
Petition No. 484 of 2014.

Okoth Okombo, Judges Verdict on Birth Records May Lead to More Abortion
Cases, Saturday Nation, 4 June 2016, 13.

The Marriage Act 2014, No. 4 of 2014.

Class 11-12: Regulating the Media
Themes: Nature of the media old and new; role of the media in
democratization; forms and politics of media regulation; media and citizenship
the question of hate speech.

Readings

Sheila S. Coronel, The Role of the Media in Deepening Democracy, United
Nations Public Administration Network, 2001.

Francis B. Nyamnjoh, AFRICAS MEDIA: DEMOCRACY & THE POLITICS OF
BELONGING 25-80 (Zed Books, 2005).

Fredrick Ogenga, Political Economy of the Kenyan Media: Towards a Culture of
Active Citizen Journalism, 4 GLOBAL MEDIA JOURNAL AFRICAN EDITION 151
(2010).

Levi Obonyo and Clayton Peel, Media Regulation in Emerging Democracies:
The Example of Kenyas Hybrid Model, 5 AFRICAN COMMUNICATION
RESEARCH 139 (2012).
4

Grace Mutungu, New Media in Kenya: Time for Regulation?, Article 19, 13
September 2012.

Alexander Tsesis, Dignity and Speech: The Regulation of Hate Speech in a
Democracy, 42 WAKE FOREST LAW REVIEW 497 (2009).

Class 13-14: Regulating Dispute Resolution Institutions
Themes: judicial independence and accountability; the judiciary as a neutral
arbiter among competing political interests; legitimacy of formal versus
informal justice systems; regulating informal justice institutions.

Readings

Nuno Garoupa and Tom Ginsburg, Guarding the Guardians: Judicial Councils
and Judicial Independence, 57 AMERICAN JOURNAL OF COMPARATIVE LAW
103 (2009).

Migai Akech and Patricia Kameri-Mb0te, Kenyan Courts and the Politics of the
Rule of Law in the Post-Authoritarian State from 1991 to 2010, 18 EAST
AFRICAN JOURNAL OF PEACE AND HUMAN RIGHTS 357 (2012).

Leigh T. Toomey, A Delicate Balance: Building Contemporary Customary and
State Legal Systems, 3 LAW AND DEVELOPMENT REVIEW 156 (2010).

Tanja Chopra, Dispensing Elusive Justice: The Kenyan Judiciary Amongst
Pastoralist Societies, 2 HAGUE JOURNAL ON THE RULE OF LAW 95 (2010).

-End-
5
Political Studies (1994), XLII, 84-100
Governance, the World Bank and

Liberal Theory
DAVID AND TOMYOUNG

WILLIAMS
School of Oriental and African Studies, University of London
We examine the recent debates about governance, focusing particularly on the World
Bank and identify certain factors which have in recent years moved the Bank's
thinking beyond narrowly economic notions of development. Our account is tentative
and we suggest further avenues of research. We try to connect the Bank's thinking
systematically with key features of liberal discourse and suggest that thiscan do much
to illuminate practice. We illustrate this with a discussion of the growing relationship
between the Bank and NGOs, to contribute to forms of analysis which go beyond the
ideas vs. interests polarities that still inform so much of contemporary social and
political theory.
There ought not to be two histories, one of political and moral action and one of
political and moral theorizing, because there were not two pasts, one populated
only by actions, the other only by theories. Every action is the bearer and
expression of more or less theory-laden beliefs and concepts; every piece of
theorizing and every expression of belief is a political and moral action.
Alasdair Maclntyre, After Virtue, p.61
Governance: What's in a Name

Good government and governance have become almost an obsession in current
debates about development.' There has been a flood of academic texts, an
increasing number of conferences and a growing focus upon them by bilateral
donors and multilateral institutions such as the Commonwealth, the ECA, and
the World Bank.* Not that this implies any clear consensus amongst those who
have promoted these terms. At one extreme are those for whom they simply
mean competitive elections. The Director of the Carter Centre of African
Governance has argued that accountability, the most crucial element of gover-
nance, can be best achieved, 'through the requirement that a government's
continuation in office depends on the active approval of the people as expressed
in competitive elections'.' Others see them as more indirectly related to democ-
I For a general discussion of the term see G. Hyden, 'Governance and the study of politics', G .
Hyden and M. Bratton (eds), Governance and Politics in Africa (Boulder, Lynne Rienner, 1992).
2 For the Commonwealth see E. Anyaoku 'The commonwealth and the challenge of democracy'.
Development Policy Review, 10 (1992), 99-106.
3 The Carter Centre of Emory University, African Governance in the J990s,Working papers from
the second annual seminar of the African Governance Program (Atlanta, Carter Centre, 1990),
p.202.
,(". Political Studies AEsaiation 1994. Published by Blackwell Publishers. 108 Cowley Road, Oxford OX4 IJF. U K and 238 Main Strat.
Suite 501, Cambridge. M A 02142. USA.
DAVID AND TOMYOUNG
WILLIAMS 85
racy, in whatever sense of that protean term.4 British Foreign Secretary Douglas
Hurd sees governance as embodying pluralism, public accountability respect, for
the rule of law and human rights, and market principles; while for Linda
Chalker it comprises competition, accountability and respect for the individuaY.5
The former British Shadow Minister for Overseas Development, Ann Clwyd,
suggested that respect for human rights, popular participation and pluralism in
civil society were essential for development.6Francois Mitterand has said that
France would link its aid contributions to efforts designed to lead to greater
liberty and democracy. The German Ministry for Economic Co-operation has
introduced criteria for assessing the kind and volume of aid for a country. These
include popular participation in the political process, responsible and accountable
government and respect for human rights.8 USAID is funding programmes
designed to increase participation in development, to support and strengthen
democratic institutions and civil society and support human rights9
The World Bank has always been concerned with good government in a
rather narrow sense: broadly, managerial or institutional issues relating to
bureaucratic reforms, policy analysis, improving co-ordination and what it calls
the efficiency of public services.1 This concern lies behind such projects as the
African Capacity Building Initiative and is reflected in what the Bank and
others call technical issues. There are those who would see the Bank as
concerned mainly with these issues.I2 Officially the Bank is constrained by its
Articles of Agreement which expressly forbid taking non-economic consider-
ations into account.13 The authors of the early drafts of the Articles, including
Keynes, were at pains to emphasize the neutrality of the institution when it
came to political ideologies and interests.14The World Banks focus upon a new
range of issues, not simply technical and managerial, under the heading of
Claude Ake The case for democracy, and Anyang Nyongo Democracy and political institu-
tions. Carter Centre, African Governance.
D. Hurd, Speech given to OD1 1990; L. Chalker, speech given to the Wilton Park Conference on
Good Government in Africa 1991. Close students of Mr. Hurds political thought might note the
following remark from a fictional work. The setting is a future (presumably Tory) conference at
which the Foreign Secretary must explain why a British soldier has died in a foreign land - he was
doing something new. something in a way more daring and ambitious. He was joining with others in
an attempt to deal with wickedness and cruelty, to establish decency and order not just where the
Union Jack flew (sic) but throughout the world. In the story the speech turns the conference and
receives a standing ovation. Ten Minutes to turn the Devil. A Short Story by Douglas Hurd. The
Observer Review, 31 January 1993.
A. Clwyd The Labour Partys policy on overseas aid, Journal of International Developmenr.
(1992). 94-102.
Interview with FranGois Mitterand, Le Monde, 20 June 1990.
K. Van de Sand and R. Mohs, Making German aid more credible. Development and Coope-
ration, 1 (1992), 4
African Bureau of Information Centre USAID, African Voices. 1 (1992). 4.
Iu See World Bank, Accelerated Developmenr in Sub-Saharan Africa: an Agenda for Action (Wash-
ington DC, World Bank, 1981) pp.3 1 4 ; World Development Report (Oxford, Oxford University
Press, 1983), pp. 115-24; World Development Report (Washington DC, World Bank, 1988).
World Bank, A Frameworkfor Capacity Building in Policy Analysis and Economic Management
in Sub-Saharan Afiica (Washington DC, World Bank, 1989).
I* M. Bratton and D.Rothchild. The institutional bases of governance in Africa. Hyden and
Bratton (eds),Governance and Politics in Africa. p.265; R. Charlick. Governance Working Paper.
given at the Wilton Park Conference on Good Government in Africa.
I) Articles 111 5b. IV 10. and V 5c. See also I. Shihata, The World Bunk in a Changing World:
Selected Essays (Dordrecht, Martinus NijholT, 1991) p.61. Of course in its operations the Bank has
often ignored these.
I4 Shihata, World Bank, p.71.
C Political Studies Asoocidtion, 1994

86 Governance, the World Bank and Liberal Theory
governance thus seems to be an important departure from previous policy,

prompted in large part by its experience in Africa. Indeed it is acknowledged by
a number of writers that the World Bank report Sub-Saharan Africa: from
Crisis to Sustainable Growth, which characterized the crisis in the region as a
crisis of governance has been of crucial importance in stimulating this intense
focus.15 The new focus has more explicitly political concerns with legitimacy,
participation, pluralism, a free press and human rights, and these issues have
become for the Bank a key factor in explaining Africas current crisis.
However, as with the florid statements by politicians, there are problems in
deciphering exactly what the Bank means by governance. The Banks position is
a rather confused one. This is only to be expected perhaps for such a new area of
concern, but it makes for certain analytical difficulties. The Bank is a large and
diverse organization, so much so that even to talk of the Banks position at all
is to oversimplify. Even during the period when most observers would have
considered the Bank as having an unbroken commitment to pricism, there
were departments within it which did not reflect orthodox thinking.16 It is likely
there will be differences over governance as well. To overcome these difficulties
for the purposes of this analysis the official position will be gleaned from Bank
publications, and will focus upon common themes rather than differences of
emphasis. This will be supplemented with an analysis of an unofficial position
as reflected in the publications of the Senior Policy Adviser in the Africa Region
Technical Department, Pierre Landell-Mills.
Governance and the World Bank

As already suggested, the 1989 report, Sub-Saharan Africa: from Crisis to
Sustainable Growth, clearly marked a watershed in the emergence of governance
issues in the Banks thinking. While it continued to register a concern for the
appropriate economic policies that had characterized earlier reports, it also
argued that a crisis of governance underlay the litany of Africas development
problems.I7 What was needed in the region above all was political renewal
involving the creation of a pluralistic institutional structure.ls History sug-
gests (the report argued), that political legitimacy and consensus are a precon-
dition for sustainable development. The two countries with the best economic
performance in Africa, Botswana and Mauritius, both had effective parliamen-
tary democracie~.~ There are two aspects to this analysis. The first concerns so-
called technical areas. This has particularly revolved around establishing a legal
framework for development and capacity building. The former is to involve
both an instrumental element which concentrates on the formal elements
necessary for a system of law to exist, such as a set of rules known in advance,
G. Hyden. Governance and the study of politics, Hyden and Bratton (eds), Governance and
Politics in Africa, p.5; M. Bratton and D. Rothchild, The institutional bases of governance in
Africa. p.265. World Bank, Sub-Saharan Africa: j i o m Crisis to Sustainable Growth (Washington
DC,World Bank, 1989), p.60. See also The emergence of the Good Government agenda: some
milestones, Good Government? IDS Bulletin, 24 (1993), p.7.
16 M. Lipton, The limits of price policy for agriculture: which way now for the World Bank?,
Development Policy Review, 5 (1987). 197-215; P.Mosley, J. Harrigan, and J. Toye, Aid and Power,
vol. 1 (London. Routledge, 1991). p.24.
17 World Bank. Sub-Saharan Africa:Jrom Crisis to Sustainable Growth, p.60.
18 World Bank, Sub-Saharan Africa: from Crisis to Sustainable Growth, p.6, p.61.
I v World Bank. Sub-Saharan Africa: from Crisis to Sustainable Growth, p.60 emphasis added,
p.61.
I Political Siudies Asmation. 1994
DAVID AND TOMYOUNG
WILLIAMS 87
and an independent judiciary, and a substantive element which refers to the

content of the law and concepts such as fairness, justice and liberty. The
World Bank sees its role as facilitating the communication of laws more effec-
tively, ensuring the consistency of laws, updating legal systems, and training the
judiciary. The latter is to involve improving policy analysis and budget disci-
pline, improving training and bureaucratic procedures, reforming the civil
service, particularly the reduction of overmanning, improving bureaucratic co-
ordination and establishing a distinction between public office and private
person. It is clear that the model for both the legal system and the bureaucracy
is a Western liberal one. Both of these sets of reforms are presented as free from
any political or ideological concerns; the existence of such a system is a basic
requirement . . . for a modem state.*
Second, governance is concerned with civil society. This involves support for
voluntary organizations and NGOs, the informal and formal economies as well
as for the more obvious groups in civil society such as universities, trade unions,
and professional organizations. It involves, building a pluralistic institutional
structure, and creating intermediaries between the government and the peo-
ple.22 These intermediaries have an important role to play; they can create links
both upward and downward in society and voice local concerns more effectively
. . . they can also exert pressure on public officials for better performance and
greater accountability.23The Banks promotion of civil society is linked to its
promotion of accountability, legitimacy, transparency and participation as it is
these factors which empower civil society and reduce the power of the ~tate.2~
Accountability is crucial to ensure congruence between public policy and actual
implementation, and the efficient allocation and use of public resource^'.^^ It is
to be encouraged at the macro and micro levels. At the macro level, there should
be effective systems of financial accountability and systems of accountability
for economic performance. At the micro level, accountability and legitimacy
should be encouraged by competition providing opportunities for exit, and
participation providing opportunities for voice. The Bank sees its role as
encouraging competition, providing comprehensive information, encouraging
auditing reforms, encouraging participation in the design and implementation
of development projects, and making use of non-governmental organizations to
ensure that the voice of the poor is heard.26 The Bank has also encouraged
decentralizing administration and strengthening local government.27
20 For the rule of law see Shihata, World Bank, pp.81-8. See also World Bank, Governance and
Development (Washington DC, World Bank, 1992), pp.29-39, and Sub-Saharan Africa: from Crisis
to Sustainable Growth, p.55. For building capacity see Shihata, World Bank, p.91; World Bank,
Sub-Saharan Africa: from Crisis to Sustainable Growth, pp.55-6; A Frameworkfor Capacity Building
passim; World Development Report 1988 (Washington DC, World Bank, 1988)passim; R. M. Lacey,
Managing Public Expenditure: an Evolving World Bank Perspective (Washington DC,World Bank,
1989).
2 Shihata. World Bank, p.85 emphasis added.
22 World Bank, Governance and Development, p.49; Sub-Saharan Africa: from Crisis to Sustainable
Growth, p.61; A Framework for Capacity Building, p.6.
23 World Bank, Sub-Saharan Africu:/rom Crisis to Sustainable Growth, p.61.
3 Shihata, World Bank, p.90, World Bank, Governance and Development, pp.13-26.
2) World Bank, Governance and Development, pp. 1 3 4 .
26 World Bank, Governance and Development, p.49.
27 World Bank, Governance and Development, pp.214; Sub-Saharan Africa: from Crisis to Sus-
tainable Growth, p.58.

C,Political Studies Association, 1994
Transparency is essential for economic efficiency, and for the prevention of

corruption.28.This focus upon the construction of civil society is important for
understanding the Banks position on democracy. It has shied away from
outright advocacy of democracy preferring instead to focus upon the values
of liberal democracy (participation, accountability, legitimacy and so on)
and the construction of what we will later call a liberal public sphere.
Pierre Landell-Mills, speaking in his personal capacity, is freer to say things
the Bank could not publicly endorse. His conclusion is that, to be workable the
governance of African states needs to be systemarically rebuilt from the bottom
up. This implies effective empowerment of a variety of interest groups - not just
grass roots, community and womens organizations, but also professional and
business associations and other intermediary private voluntary organisations.*9
An articulate and empowered middle class he continues, echoing Barrington
Moore, is a necessary precursor to stable democratic politics, and NGOs are
their training ground.30The donor community should be involved in empower-
ing these groups in civil society at a national and local level.31 Particularly, the
Bank should promote institutional pluralism and foster NGOs and grass roots
organizations. He says bilateral donors and NGOs should press for more
explicit political concerns such as respect for human rights and elections.32 This
unofficial view is also, in its rhetoric at least, concerned to build on the
indigenous and respect national sovereignty.
It is clear then that these are new areas of concern for the Bank. It has moved
away from a narrowly economic notion of development and a concern with
good government in the old-fashioned sense. What has helped to produce this
shift? There seem to be at least five key factors in explaining the emergence of
the governance issue within the Bank. Four of these are discussed briefly now.
We return to the fifth, relations with NGOs, at the end of this article.
Flavourof the month Syndrome
The new Bank President, Lewis Preston, has admitted that the Bank has a
flavour of the month syndrome. The crucial questions are of course what
flavour, and perhaps more importantly, whose flavour. The Bank has always
had a complex relationship with what we might call the development ortho-
doxy in the wider development community of Western governments, NGOs
and academics. In some ways the Bank reflects the orthodoxy and in others the
Bank has helped to produce it. The new focus upon governance is in part based
upon a growing consensus in the wider development community that political
considerations play a crucial role in determining development. Clearly though
this consensus is itself partially the result of the Banks own focus on gover-
nance. As to whose fashion there can be little doubt that the Bank is influenced
by Western countries and in particular the United States. In 1980, when the
?* World Bank. Governance und Development, pp.39-47.
3 P. Landell-Mills. Governance,Civil Society and Empowerment in Sub-Saharan Africa, paper
prepared for the Annual Conference of the Society for the Advancement of Socio-Economics 1992,
emphasis added.
IO Landell-Mills, Governance, Civil Society and Empowerment.
1 P. Landell-Mills and 1. Serageldin, Governance and the external factor, Proceedings of the
World Bank Annual Conference on Development Economics (Washington DC, World Bank, 1991).
2 Landell-Mills and Serageldin, Governance and the external factor, and Governance and the
development process, Finance and Development, 28 (1991). 14-7.
I Landell-Mills and Serageldin, Governance and the external factor.
Independent on Sunduy. (London) 10 May 1992.
I Political Sludm Associalion, 1994
DAVID AND TOMYOUNG
WILLIAMS 89
Reagan administration came to power, it criticized the Bank for promoting

socialism and undermining capitalist development, and pressured the Bank to
come into line with the US governments foreign policy aims.3s The Reagan
Budget Director said the Bank, has not been vigorous in using the leverage
inherent in its large lending programmes to press recipients to redirect their
economies towards a market ~ r i e n t a t i o n . ~ ~
It would be wrong however to see the Bank as entirely the tool of the US or
Western governments. Clearly the relationship is more complex than that and in
many ways the Bank is an important influence upon these governments poli-
cies. Yet of course this influence is important, and is sure to be felt as the US and
other Western governments re-orientate their foreign policies in response to the
changes in Eastern Europe. The US has always had a tradition of focusing on
human rights in its foreign policy and it seems likely that this will increase in
coming years.37 USAID has an African Bureau Democracy and Government
programme. Other Western governments such as France, Britain and Germany
are increasingly concerned to tie aid to democratic reforms.38It is important not
to be deterministic (and also to recognize that there may be important differ-
ences between Western governments on this issue), nonetheless it is indisputable
that with the US holding 17.59% of the votes in the Bank, Germany 6.19%, and
Britain and France 5.93%, these countries are bound to have an influence on
Bank policy.39
Experience with Adjustment Lending

We will not be concerned here directly with criticizing the Banks adjustment
policies. These criticisms include the view that such policies are not consistent
with Africas long-run development needs; that there is no theoretical basis for
advocating wholesale economic liberalization; that structural adjustment fails
to stimulate a supply-side response; and that adjustment unduly hurts the
poor.O Of course, the economic effects of adjustment are, and will probably
remain, conte~table.~ What is important is that it became clear to the Bank that
part of the reason for the limited (at least) success of structural adjustment were
political considerations that went beyond the size of the public sector or increas-
ing the technical capacities of states.42 Whether it was viewed as a success or a
failure the experience of adjustment lending led the Bank to take account of
political factors such as interest group pressure and government legitimacy as
somehow important. The second point is that the Bank has recognized some of
35 R. Ayres, Banking on the Poor: the World Bank and World Poverty (Cambridge, Mass., MIT
Press, 1983) pp.11-2, p.231.
36 Quoted in Ayres, Banking on the Poor, p.12.
17 See C. Lancaster, Governance and development: the views from Washington, Good Govern-
ment? p. 13.
38 For an overview see S. Riley, The Prospects for Democracy in Africa, Talk given at Chatham
House 1991.
39 Figures from World Bank, Annual Report 1991 (Washington DC, World Bank, 1991) p.235.
00 F. Stewart, Are adjustment policies consistent with Africas long-run development needs?,
Development Policy Review, 9 (1991), 413-39; Mosley et al.. Aidand Power, p.92; J. Toye. Dilemmas
of Developmenf (Oxford. Blackwell. 1987) pp.74-5; M. Lipton, Requiem for adjustment lending,
Development Policy Review, 8 (l990), 43743.
41 See for example C. Stoneman, The World Bank Versus Zimbabwe: Structural Adjustment or
Development?, paper presented at University of York CSAS 1991.

42 World Bank, World Development Report 1990, p.115; Shihata, World Bank, p.53.
Politicdl S:udies Association. 1994

the shortcomings of previous policy. It has in recent years concentrated more

upon infrastructure, health and education in an attempt to reduce supply-side
problems, and on alleviating some of the social problems associated with
. ~ ~ led to the rather obvious conclusion that the state has an
a d j ~ s t m e n tThis
indispensable role in development, but it did focus attention on to the kind of
state that was needed and what its relations with the populace should be.
Internal Bank Factors

These are difficult to assess, as are the internal workings of any large organiza-
tion and it is difficult to come to any firm conclusions, but certain features do
seem important. First the decline of the Economic Research Staff which used to
dominate report writing during the years of the pricist orthodoxy, but which
disappeared as a separate vice-presidency in 1987.45As a result, in part at least,
the Bank became much more open to outside influence, and adopted a more
consensual style. Second, in 1985 the Economic Development Institute (EDI)
was brought within the operations complex of the Bank and had its financial
allocation increased with the object of building country capabilities for econ-
omic management, policy reforms and senior level training.& This has been
reflected in programmes such as the African Capacity Building Program and
other technical reforms. The ED1 organized a set of political economy semi-
nars in 1986 which focused upon the political constraints to structural adjust-
ment and has continued to produce discussion papers and reports on the issue
of It is clear that in some way the Africa region of the Bank has
had an extraordinary influence. It was the 1989 report which focused Bank
thinking, and has become the basis for a general Bank position on governance!*
What the dynamics of this adoption are is unclear (it is perhaps that Africa
seems the most pressing area of concern), but it would be intriguing to see what
the South East Asia region, for example made of the focus upqn legitimacy,
participation, and consensus as the basis for economic d e ~ e l o p m e n tWithin
.~~
the Africa region the senior policy adviser, Pierre Landell-Mills seems to have
been important. He was staff director on the 1983 World Development Report
which focused upon Management in Development, and more importantly he
was task manager and co-ordinating author on the 1989 Sub-Saharan Africa
report. He continues to produce provocative pieces on the issues of governance.
Of course much of this is speculation. The Bank has a reputation for secrecy,
and by their very nature these internal politics are difficult to study. Many
questions remain unanswered. For example it is unclear how, and how long it
takes for these governance ideas to feed into operations, or what the relations
3 World Bank, Sub-Saharan Africa: from Crisis to Sustainable Growth, and World Development
Report 1990, passim. See also World Bank The Social Dimensions of Adjustment in Africa (Wash-
ington DC, World Bank, 1990).
World Bank, Sub-Saharan Africa: from Crisis to Sustainable Growth, p.55; Governance and
Development, pp.6-I.
J Lipton, Limits of price policy; Mosley et al. Aid and Power, p.24.
16 G. de Lusignan, The Banks Economic Development Institute, Finance and Development, 23
(1986), 28-3 I.
41 See for example L. Adamolekun, Issues in Development Management in Sub-Saharan Africa
(Washington DC,World Bank, 1989).
a Shihata, World Bank, p.55; World Bank, Governance and Developmeni, pp.45.
Something hinted at in M. Moore, Declining to learn from the East? The World Bank on
governance and development , Good Government? 39-50.
0 Polrtlcal Sludus Assmarion. 1994
DAVID WILLIAMS AND TOMYOUNG 91
are between the various departments and regions within the Bank. All of these
issues would repay further investigation.
Academic Influences
These seem to have been of two kinds. Firstly, influence has been exerted in the
general sense that academic trends are part of the operational environment of
the Bank, though of course only some trends have influence. Beyond that the
Bank also hires and consults with individuals or groups of academics. In regard
to governance these influences have clearly been at work in at least two areas.
First, in the preparation of the 1989 Sub-Saharan Africa report the Bank
commissioned various background papers which have been published in four
volumes.50The 1989 Report particularly acknowledges the contributions of
Claude Ake, Goran Hyden, Jaques Giri and Janet Macgaffey among others to
these volumes. Drawing on the work of these authors has enabled the Bank to
develop two themes which were not present before. One is illustrated in Volume
3 (Institutional and Socio-political Issues) where the contributions of Ake
(Sustaining Development on the Indigenous) and Hyden (Creating an Ena-
bling Environment), among others are concerned with the theme of respecting
Africas indigenous roots in attempting to build its fut~re.~ The second is the
focus upon civil society particularly the informal economic sector, grassroots
organizations, and NGOs.52 This focus upon civil society has become a common
theme of writing on governance, and perhaps reflects in part the growth of
academic interest in civil society in recent years.53These two strands are proble-
matic and we discuss them further below.
The second area has been that of providing a theory of African politics which
can most easily be summed up as negative politics. This assessment has been
derived from the New Political Economy (Rational Choice or Public Choice)
framework. Here traditional micro-economic assumptions about the primacy
of self-interest are applied . . . to the political claims of citizens, to the actions of
politicians and policy makers, to the behaviour of bureaucracies and even to the
actions of states more generally.ss One influential commentator on the Bank
has suggested that it has been strongly influenced by these ideas, particularly
the general move away from seeing the Third World state as either economically
y, World Bank, The Long-Term Perspective Study of Sub-Saharan Africa (LTPS) 4 vols (Wash-
ington DC,World Bank, 1990).
World Bank, LTPS. vol. 3, p.v.
s2 See for example J. Macgaffey, The endogenous economy, and J. Gin, Formal and informal
small enterprises in the long-term future of Sub-Saharan Africa, both in World Bank, LTPS vol. 3.
53 See Carter Centre, African Governance, and Bratton and Rothchild, Institutional bases of
governance. For civil society see M. Bratton, Civil society and associational life in Africa, World
Politics, 49 (198&1989), 407-390, J-F. Bayart, Civil society in Africa in P. Chabal (ed.),Political
Dominarion in Africa (Cambridge, Cambridge University Press, 1986); and D. Woods, Civil society
in Europe.and Africa: limiting state power through a public sphere, African Studies Review, 35
(1992). 77-100.
M. Grindle, The new political economy: positive economics and negative politics, in G . Meier
(ed.), Politics and Policy Making m Developing Countries: Perspectives on the New Political Economy
(San Francisco, ICS Press, 1991).
JJ Grindle, The new political economy, p.44. See also R. Bates, Markets and Stares in Tropical
Africa (Berkley, University of California Press, 1981) pp.2-3; M. Staniland, Whar is Polifical
Economy? (New Haven, Yale University Press, 1985) ch.3. For the Bank and new political
economy see Mosley er al., Aid and Power, pp.13-21.
8 Political Studia Association, 1994
or politically benign.56 There have also been more specific influences at

This aspect would repay further research into what and how various influences
are absorbed into Bank thinking. It does seem clear however that this concep-
tion of African politics has influenced the Bank: individuals whether in or out
of government, use the resources at their disposal to further their own private
interest; and, appropriation of the machinery of government by the elite to
serve their own ends is at the root of this crisis of governan~e.~~
The importance
of this for us is that it generates prescriptions which aim to make political actors
more accountable, and their actions more transparent. Actors are assumed to
respond rationally and hence will provide what the people want for fear of
losing their jobs.
Governance and Liberal Theory

Liberal theory is broad and rich and there can be no question of offering a full-
scale analysis, or even an exhaustive definition of liberalism here. Yet it would
also be analytically impoverishing not to pursue an approach that explores the
many links between political theory and practice. Michael Sandel has sug-
gested people often see political philosophy residing at a distance from the real
world of politics. But for the study of governance political theory is of crucial
importance. Sandel went on to argue that political philosophy inhabits our
practices and institutions; they are in a real sense embodiments of theory.59
This section follows his suggestion. It first proposes that the World Bank
constructs governance, in part at least, from liberal theory. Second, this con-
struction of governance reproduces some important ambiguities and tensions
that exist in that liberal theory.
Even to identify liberalism is fraught with difficulties. It has been said that
the word itself is a trouble-breeding and usually thought-obscuring term, and
that it has no single unchanging nature or essence.@Here we are concerned
with liberalism as what might be called a working ideology - how it informs
political and other practices, rather than in its most sophisticated formal intel-
lectual statements, though we do try to link the two. Despite the difficulties, the
view taken here is that it does seem to denote or delimit a field of arguments or a
bounded area of disagreement. Within this field there are critical issues such as
liberty, choice and rights, and dispute over their various justifications and
limits. It is arguments over these particular issues which distinguish liberalism
from other intellectual traditions. Here we will do no more than assert (conven-
tionally enough) that a central feature of modern liberalism is a distinction
between the right and the good and the apparent prioritization of the first
56 J. Toye, Interest group politics and the implementation of structural adjustment policies in
SubSaharan Africa,Journal of International Development, 4 (1992). 184.
57 The title of an early paper by D. Lal, The Political Economy of the Predatory State, DRD
Paper 105 (Washington DC, World Bank, 1984) gives the flavour of this kind of analysis. La1 was an
influential figure in the Research Department of the Bank.
World Bank, Annual Report 1988, pp.49-51; Sub-Saharan Africa: from Crisis to Sustainable
Growth, p. 197.
~9 M. Sandel, The procedural republic and the unencumbered self, reprinted in S.Avineri and A.
De-Shalit (eds), Communitarianism and Individualism (Oxford, Oxford University Press, 1992) p. 12.
M Arthur 0. Lovejoy quoted in S . Lukes, Individualism (Oxford, Blackwell. 1990) p.43; J. Gray,
Liberalism (Milton Keynes, Open University Press, 1986) p.ix.
0Political Studies Association, IW
DAVID AND TOMYOUNG
WILLIAMS 93
over the second.6i It is, so the argument goes, philosophically impossible to
choose between notions of the good, and attempting to do so, to establish an
overriding notion of the good, will only end in conflict and violence. This in turn
generates interlocked propositions about the nature of the state, civil society
and the self. Thus modem liberals argue that the State should be a neutral
framework within which competing conceptions of the good can be equally
pursued.62Linked to such notions of a neutral state, indeed required by them, is
the notion of civil society characterized as a realm of freedom in which
individuals engage in formally uncoerced transactions. Finally this complex of
concepts requires a certain notion of the self, a free choosing individual who is
the best, indeed the only judge, of his own interests. Arguably it is this free
individual who is at the core of liberal belief. To what extent is World Bank
thinking shaped by such conceptions?
TechnicalReforms and Neutrality

William Clausen (World Bank President during 1980-6) has been quoted as
saying that the Bank is not a political organisation, the only altar we worship at
is pragmatic economic^'.^^ In the preface to the Berg Report Clausen argued
that its focus upon markets and prices was, not a recommendation which
derived from any preconceived philosophy of ownership. It derives from con-
siderations of efficiency. The General Counsel of the Bank has stated that,
technical considerations of economy and efficiency rather than ideological and
political considerations should guide the Banks work at all times.64 This
entirely familiar (and not very sophisticated) separation of technical issues
from politicsis a common theme of elite discourse in liberal capitalist societies
which nonetheless rests on notions of neutrality. Thus the Bank subscribes to
such notions for entirely conventional liberal reasons, namely that the state (and
by extension the Bank) must be neutral between competing conceptions of the
good.65
Yet there are good reasons to suppose that this notion of neutrality (in all its
variants) is unsustainable within liberal theory as well as the distinction between
the right and the good from which it is derived. As Mendus shows, neutrality is
6i Classically J. Rawls, A Theory of Jusfice (Oxford, Oxford University Press, 1971). We are
mindful of skating over important differences within the liberal tradition, Arguably that tradition,
in modem times at least, takes either a utilitarian or rights-based form. For an argument that these
traditions have much in common see I. Shapiro, The Evolution of Rights in Liberal Theory (Cam-
bridge, Cambridge University Press, 1986).
See R. Dworkin. Liberalism,in S . Hampshire (ed.),Public and Privare Morality (Cambridge,
Cambridge University Press, 1978). Waldron points out that while the term neutralityis relatively
novel in this context the term is only the most recent attempt to artculate a position that liberals
have occupied for centuries. J. Waldron, Liberal Rights Collected Papers 1981-1991 (Cambridge,
Cambridge University Press, 1993) p. 143. There are of course sophisticated analysesin the literature
both of the form of such neutrality (e.g. as between intentions and consequences) and indeed
arguments as to whether liberals should abandon the idea. We do not think that this detracts from
the analysis presented here. See the discussion in W. Kymlicka, Liberal individualism and liberal
neutrality, Erhics, 99 (1989), 883-905, and R. Douglas, G. Mara and H. Richardson (eds),
Liberalism and the Good (London, Routledge, 1990).
61 Quoted in T. Hayter and C. Watson, Aid: Realify and Rhetoric (London, Pluto, 1985) p.196.
Shihata, World Bank,p.95.
There are of course other factors in play concerning relations between states and sovereignty
which we neglect here. The imperatives of politeness towards the sovereignty of Third World states
are in any case becoming more threadbare by the day.
0Poliucal Studies Association, 1994
an extremely thin principle which must be sustained by some other value usually
(and distinctively within the liberal tradition) autonomy.66Even if neutrality is
taken as a guiding principle rather than a foundational one, it generates neutra-
list conclusions only with respect to those who already accept liberal principles.
In all the constructions of neutrality in contemporary liberal theory, heavily
loaded assumptions about what are valuable ways of life are in fact smuggled
in.67Arguably this sleight of hand has characterized liberal thought from its
beginnings. Salkever suggests that from Hobbes onwards, the liberal preference
for a peacable and comfortable life is established subliminally, as it were, by
repetition that appears to seek the readers complicity, rather than by an explicit
argument that would risk contradicting the neutrality condition.68It is indeed
difficult to avoid the conclusion that, the concept of right, far from being (as the
liberal insists) independent of and anterior to any conceptions of the good, will
in fact be a function of our conception of the good.@
The Banks discourse exactly reflects these theoretical arguments. Its so-
called technical reforms are necessarily guided by a prior conception of the
good. Governments, it argues, must provide rules to make markets work, and
ensure property rights.O The existence of a system of stable law is, a basic
requirement for a stable business environment and the success of investment.
Without it, the fate of enterprises like that of individuals will be left to the
whims of the ruling elite or clique. Legal reform confers stability on contractual
transactions and ensures predictability to property rights. Bureaucracies are to
be judged on, the degree and quality of. . . [their] intervention in the running of
the ec~nomy.~ Clearly there is here a conception of the good of social organiza-
tion and the role of the state within it, that, whatever else it is, is not neutral,
despite attempts to hide behind procedural norms (questions of right). This
concept and its attendant view of the state is only neutral between social and
political forms that already concede its principles. The good for which the
World Bank stands is a market economy and a neutral state which ensures the
proper functioning of that economy by means of the enforcement of property
rights and contractual obligation^.^^ What has changed in the context of gover-
nance is that the Bank, or at least some within it, have come to the view that
such a neutral and effective state, cannot be sustained without a corresponding
liberal public sphere.
Pluralism, Tolerance and Civil Society

We have already suggested that the most innovative part of the World Banks
recent positions is the concern with civil society and especially with the centra-
lity of civil society to development. Traditionally of course such a civil society
* S. Mendus, Toleration and the Limits ofLiberalism (London, Maanillan, 1989) ch.4.
67 See R. Bellamy, Liberalism and Modern Society (Cambridge, Polity, 1992) ch.5 for a useful
demonstration of this.
a S. Salkever, Loppdand bound: how liberal theory obscures the goods of liberal practicesin R.
Bruce Douglas et al. (eds). Liberalism und the Good, p. 17 I .
69 Mendus, Toleration pp. 1 IsC20. There is a useful parallel argument in C. Taylor, Atomism
Philosophical Papers. 2 (1986), p.205 er seq.
World Bank, Governance and Development, p.6.
7l Shihata. World Bunk, pp. 87-90.
72 Of course liberal thinkers notoriously disagree about what the state may do after this point in
terms of patterneddistributions and so on. Their general agreement up to this point does not of
course make it neutral.
@ Political Studies Association, 1994
DAVID AND TOM YOUNG
WILLIAMS 95
was seen as a sphere of interactions free of state interference and characterized

by pluralism and tolerance. Much of the governance literature heeds the histori-
cally familiar liberal imperative of tolerance. Landell-Mills has argued that,
Africa will only emerge from its current difficulties if it can progressively
remodel its institutionsto be more in tune with the traditions, beliefs, and structure
of its component ~ocieties.~3 This view is echoed in official Bank documents:
each country has to devise institutions which are consonant with its social
values; . . . for change to be effective it must be firmly rooted in the societies
concerned; World Bank programmes must reflect national characteristics and
be consistent with a countrys cultural values.74The Bank cites the examples of
Japan and the South-East Asian NICs to sustain this view.7s As one Bank
commentator has said, Japan, the Republic of Korea and Taiwan are examples
of economies that have achieved high levels of modem production and
advanced technology while maintaining their unique national traits.76The
assumption is that Africa can do the same. This view may have firm practical
justifications. But it also has theoretical underpinnings in the language of
tolerance and pluralism. Outside models not only cannot but should not be
imposed: The Bank should not prescribe a particular political system.77
Such sentiments would seem to require that close attention is paid to how in
different societies culture, language, social practices and so on interact with
institutions such as the market, state or bureaucracy. Indeed the Bank itself has
both encouraged and carried out such investigations. These appear however to
produce rather paradoxical conclusions. Of course, certain features of African
life may prove to be highly beneficial, and they may embody, to a certain extent,
themes of governance such as participation and legitimacy; but they may not, or
at least they may embody them in rather different ways from Western under-
~tandings.~s Thus Landell-Mills himself has suggested, African managers can-
not easily set aside their loyalties to their community . . . African managers
cannot easily escape the heavy social obligations that take up a large proportion
of their time.79The Bank has said that, family and ethnic ties that strengthen
communal actions have no place in central government agencies where staff
must be selected on merit, and public and private monies must not be con-
fused.80Many other experts, including some working for the Bank, appear to
agree. Diouf has argued that the lifestyle of Senegaleseelites which has had such
deleterious economic effects remains rooted in African culture.8 Bayart has
argued that part of the reason for corruption within the African state is the
7J Landell-Mills, Governance, civil society and empowerment.

74 World Bank, Governance and Development, p.12, and Sub-Saharan Africa: from Crisis to
Sustainable Growth, p.60, p. 193.
World Bank, Governance and Development, p.8.
76 M. Dia, Developmentand cultural values, Finance and Development, 28 (1991), 12.
77 Shihata, World Bank, p.93.
78 For examples of where they are thought to be beneficial see World Bank, LTPS vol. 2. For the
idea that participation and legitimacy can be found in non-official structures see P. Chabal, (ed.),
Political Domination, and D. Cruise OBrien, Saints and Polificians(Cambridge, Cambridge Univer-
sity Press, 1975).
79 P. Landell-Mills, Creating transparency, predictability and an enabling environment for
private enterprise, paper given at the Wilton Park Conference on Good Government in Africa
1992.
10 World Bank, Sub-Saharan Africa: from Crisis to Sustainable Growth, p.60.
81 World Bank, LTPS vol. 3, p.60.
0Political S w d m Associauon, 1994

impact of what he calls the cultural logic of African politics.82There is then on

the one hand an aspiration to build on the indigenous, and on the other a
recognition that the indigenous may be an obstacle.
This paradox can be better understood by an examination of the underlying
liberal assumptions. Liberals pride themselves on being tolerant and pluralistic.
Indeed notions of tolerance, particularly religious tolerance, have been of prim-
ary importance in the historical genesis of liberal thinking.83The concepts of a
neutral state and a pluralistic civil society are linked not least by the notion of
autonomy and its corollary of human diversity. In connecting these with deve-
lopment the Bank adopts a venerable liberal position rooted in John Stuart Mill
for whom the only unfailing and permanent source of improvement is liberty.
But it also recapitulates all the contradictions of this position and resolves them
in the same highly illiberal way. As Mendus shows, Mills position depends on
distinguishing those who are and those who are not autonomous and sanctions
breaches of the principle of liberty of the latter (typically in Mill children,
uncivilised nations and, in some moods at least, the working classes). Mills
position rests on a wholly problematic distinction between the condition and the
development of autonomy which is resolved in practice by his robust, and
highly loaded, notions of moral progress.*
The same may be said of the World Bank. Landell-Mills makes it clear that
the Bank is only keen to build on the indigenous insofar as it is compatible with
modernization.86It remains to decipher the basis on which this judgement about
what is compatible with modernization is to be made. The Banks favoured
academic experts are commendably clear on this. Hyden argues that, as long as
the economy of affection is able to influence behaviour in the civil public realm
. . . governments in Africa are likely to remain paralysed . . . it is a problem with
roots in society. To that extent it is clear that improvements in government
performance are dependent on the transformation of society.87Exactly so and this
is at the root of the Banks idea of building civil society. This is not to consist
of ethnic or other affective or community groups, but contractual, non-
community, non-affective groups, such as professional associations, chambers of
commerce and industry, trade unions and N G O S . ~ It ~is a society made up of
such groupings which will support the technical reforms; indeed it is this type
of society which will demand these technical reforms. The neutral state will be
supported by a liberal public sphere. As Partha Chatterjee has suggested the rise
of modem civil society is linked to what he calls the narrative of capital which
replaces the narrative of community. Community with its ties of kinship and
affection sits, very uneasily, he argues, with the demands of capital for
efficiency and homogenised individ~als.8~ The transformation suggested
J-F. Bayart, Finishing with the idea of the Third World: the concept of political trajectory, in
J. Manor (ed.),Rethvlking Third World Politics (London, Longman, 1991).
8 ) Mendus, Toleration,passim.
J. S. Mill, On Liberty (Harmondsworth, Penguin, 1988).
85 Mendus, Toleration.
Landell-Mills, Governance. civil society and empowerment.

B7 G . Hyden, No Shorrcuts to Progress (Berkley, University of California Press, 1983) pp.8-22.
p. 106. emphasis added.
a See World Bank, Sub-Saharan Africa: from Crisis to Sustainable Growth, p.191; A Framework
/or Capacity Building; and Landell-Mills, Governance, civil society and empowerment in Sub-
Saharan Africa.
09 P. Chatterjee, Responseto Taylors Modes of civil society , Public Culture, 3 (1990).
Q Politlcal Siudics Association, 1994

DAVID AND TOMYOUNG
WILLIAMS 97
explicitly by Hyden, and implicitly by the Bank, is the destruction of those
affective or community ties which hinder development.
New Political Economy and the Liberal Self

We have already suggested that at the heart of liberal conceptions is a free self
or agent: all along, it has been a matter of emancipating selves from the
constraints imposed by pre-established values and identities, and the more
recent emphasis on individuality simply reflects the extension of this tendency
every more deeply - and widely - into the constitution of the se1f.m Most often,
and especially in relation to economic life, the characteristics of that agent have
been assumed to be universal underneath the superficial variety of culturally
conditioned behaviour. Arguably indeed much liberal social science functions
to sustain liberal political belief.9 Such conceptions of universal economic
behaviour, have been extended to the political and social realms as illustrated
by the NPE approach to politics, an approach which has met with some
sympathy from the Bank. It is clear that the Bank holds views about the
universality of economic behaviour and has been influenced by a view of
African politics derived from NPE.This leads to policies designed to enable the
public, to demand and monitor good perf~rmance.~~ In short, for the Bank this
means policies such as increased accountability and transparency, to which
politicians and bureaucrats are assumed to respond in a rational way by
improving their performance.
It is however well-known that in the field of liberal political theory (if not
economic theory) the idea of a universal liberal self has come under such
sustained assault that some liberal thinkers have been prepared to concede that
the liberal self is a product of particular historical circumstan~es.~~ It is at least a
strong inference that the liberal self far from lying dormant, universally waiting
emancipation from sinister oppression, is in fact a construct of recent and
Western provenance.% It would be wrong to suggest that the Bank or its
thinkers have devoted great attention to these issues but it seems a strong
implication (that perhaps parallels the more formal theoretical debates) that the
Bank is beginning to make the connection between the kind of civil society that
it wishes to foster, and the kind of agent or self necessary for that society to
function. The thought is undoubtedly there: the benefits of a participatory
approach is not simply the immediate advantage of a project better tailored to
the clients needs, but also the impulse it gives to the long term process of
changing men tali tie^'.^^ The mentalities to be brought about by long-term
change will be devoid of affective or communal ties and will be free to associate
within modern social organizations. On a broader level the Western legal and
bureaucratic models, and of course the market economy, are premised upon the
9o R. Bruce Douglas and G . M. Mara, The search for a defensible good: the emerging dilemma of
liberalism,Douglass et al (eds), Liberulism and the Good.
91 So that for example if all peasants are reallyeconomically rational policies to impose markets
or whatever on them may be justified. For some useful remarks on this see Stephen K.White, The
Recent Work of Jurgen Habermas, p.21.
92 World Bank, Governance and Development, p.14.
93 See J. Rawls, Justice as fairness: political not metaphysical, and D. Gauthier The liberal
individual, both reprinted in Aveniri and De-Shaiit (eds), Communilarianismand Individualism.
91 C. Taylors, Sources of the Self(Cambridge, Cambridge University Press, 1989) is perhaps the
most important recent analysis.
p5 Landell-Mills, Governance,civil society and empowerment,emphasis added.
0 Political Studies Association, 1994

individual who has no other public ties than contractual ones he chooses for
himself. For all the talk of building upon the indigenous it is this image which
dominates World Bank discourse.
Engineering Civil Society: the World Bank and NGOs

Finally, this analysis throws light on the relationship between the World Bank
and NGOs. NGOs have shifted their orientation from aid to development and
they have become more intellectually and operationally sophisticated and more
inclined to educate their home constituency. They may have also differentiated
politically, with many identifying themselves as progressive and seeking to
escape the perceived constraints of charitable activity. On the surface, there-
fore, the effects of these trends have been to produce considerable hostility
towards the World Bank and the network of Western interests, agencies and
discourses of which it is part. During much of the 1980s, the NGO sector was
very critical of the World Bank, particularly over structural adjustment in
general and its impact on the poor.% Thus at a big NGO conference in Sep-
tember 1990 it was argued that, World Bank and I M F programmes must be
placed within the larger context of the dominant economic and political para-
digm. This neo-liberal model is based on coercion, strength, control and cul-
tural as~imilation.~~ The basis for the claims to a critical stance seems to be
threefold. The first two concern poverty and the validity or otherwise of particu-
lar development models but the third is much more overtly political and
concerns local, democratic and participatory strategies in development. This
element of hostility is however tempered by a desire to talk to the Bank and even
cooperate with it, though publicly at least relations appear to be guarded rather
than warm.98 For its part the Bank appears to be taking a much more positive
attitude towards NGOs and to be actively searching for further areas and means
of cooperation with them as both implementers of projects and sources of
advice on policy.99In turn, NGOs are becoming more sympathetic towards the
Bank as it withdraws from some of its more excessive pricist policies and focuses
once again on reducing poverty, and on promoting health, education and
infrastructure.Im The Bank has also recruited ex-NGO staff.
There are doubtless many aspects to this rapprochement but we suggest that
there are considerable common elements in their respective agendas. The radical
noises of NGOs about Western interests should not obscure their common
vision of what development means which is rooted in Western notions of the
state, civil society and the self. The most radical part of NGO discourse ( and
clearly an important part of their self-esteem) is their emphasis on grass roots
participation and their strong demand that this become part of the development
process, an emphasis with which the Bank is not unsympathetic. But this
terminology is always to be understood entirely within Western preconceptions.
Social justice also demands the eradication of all forms of discrimination,
* J. Clark, Democratizing Development the Role of Voluntary Organisations (London, Earthscan,
1990). ch.12.
y7 Development gap continuing the challenge: Report on the 1990 International NGO Forum p.2.
We have drawn here on the Position paper of the NGO Working Group on the World Bank
December 1989.
World Bank. How rhe World Bank norks wrth NGOs (Washington DC, World Bank. 1990),and
World Development Reporr 1991, pp. 1 3 S 6 .
A. Williams, A growing role for NGOs in development, Finonce und Development, 27 (1990).
I Polilia1 Studies Arronaiion. 1994
DAVID A N D TOMYOUNG
WILLIAMS 99
whether on grounds of race, creed, tribe or sex.l0l Although NGO literature is
replete with contradictions (demanding the protection of cultures on one page
and the elimination of cultural bias on the next, which itself reflects wider
debates amongst liberals about such matters) the agenda is known in advance -
progressive, grassroots organizations are simply to be mobilised around
it.Io2 For its part the Bank has a vision of economic order which is rooted in
standard liberal conceptions and is not simply the plaything of particular
Western interests (cf. the Banks consistent opposition to tied aid). Its more
recent analysis implies the need for a capacity to reach much deeper into Third
World societies and mould them more than has ever been contemplated at least
in modem times. NGOs provide a conduit of micro-interference that comple-
ments the macro-level interference at state level. The radical vision of NGOs is
not fundamentally different - it shares the Banks doubts about the capacities of
Third World governments, increasingly shares its stress on civil society and
entirely shares its lack of interest in and contempt for cultural traditions that do
not square with Western notions of rights and justice.
Conclusion
The construction of governance is based upon three levels of transformation: at
the institutional level the creation of a neutral state; at the social level the
creation of a liberal public sphere or civil society; and at the personal level the
corresponding creation of a liberal self and modem patterns of behaviour.
These three transformations were also at the heart of the gradual transforma-
tion to modernity undergone in Britain, for example during the seventeenth to
nineteenth centuries, a parallel on which the Bank itself draws. In Governance
and Development, the Bank looks to the example of the transformation of the
English institutional sphere in the seventeenth century which saw the creation of
the Bank of England, a re-organization of public finance, the securing of
property rights and patent laws, and a freeing up of the market.lo3Landell-Mills
uses the example of the transformation of the English civil service in the
nineteenth century from being highly corrupt and inefficient to being accoun-
table, meritocratic, honest and non-partisan. He argues that the powerful
message from this example is that reform of institutions was, underpinned by a
steady growth in public morality that led to the popular demands for public
accountability, and by the growth of a social conscience. In short the growth of a
liberal public space which demanded a transformation of the institutional
sphere.104 The Bank and Bank staff are then making connections in the first two of
the suggested transformations. It might be added that as to the third the work of
Foucault and others has cast light upon the mechanisms for the control of
populations, for regulation of new forms of conduct and the creation of new
J . Clark, Democrafising Developmenf.p.30.

Ioi
The parallels with those involved in development work within capitalist societies is surely an
Io2
important topic for research. Bellah et at., Habits ofthe Heart (London. Hutchinson, 1988) note
that. for all the lip service given to respect for cultural differences, Americans seem to lack the
resources to think about the relationship between groups that are culturally, socially or economi-
cally quite different. p. 206.
lo World Bank. Governance and Development, p.7.
Landell-Mills, Governance.civil society and empowerment.

#Iy
( Political Studies Association. 1994

forms of subjectivity during this period.lo5Neither the Bank nor we are suggest-
ing the tranformation in Africa would be exactly the same, or that there are the
same institutions involved. However, it does seem plausible to suggest the
construction of governance by the Bank is akin to the historical tranformation
of the now developed world. Another insight to be gained from this historical
transformation is how much of a part liberal thought played in justifying it.J6
Liberal thought and practice historically, and now in the form of governance,
when faced with differencecannot be neutral or tolerant but does indeed have
its own broad conception of the good, which it is engaged in imposing politi-
cally, legally, socially and culturally wherever it has the power to do ~0.107
A final set of questions is raised by this analysis. What drives this relentless
urge in Western culture to do good to others by reshaping them? The sixteenth
century Spanish invasion of the Americas produced amongst other things
intense intellectual debates within a Christian framework which posits a single
god and enjoins a universalist religion applicable to human beings equally.l~
The dispute pitted those who thought the natives too debased to be worth more
than conquest at best or death at worst against those, the humanists, who
thought that they too had souls and could be brought to accept the Christian
faith. The intellectual logic in Connollys acute reconstruction is very clear - the
premises of singularity and universality press against affirming a plurality of
gods appropriate to the other in the name of cultural pluralism, while the
premise of human equality makes it sinful to practice benign neglect or indiffer-
ence towards pagan beliefs. If innocent, these others must be converted; if
hopelessly corrupted they must be conquered or eliminated so that the corrup-
tion will not spread. Perhaps tolerance can be added to the list of possible
stances . . . but it must be, as tolerance usually is, a circumscribed and tactical
tolerance. Tolerance, in this context becomes forbearance toward cultural prac-
tices thought to be intrinsically wrong or inferior, but also thought to contain a
glimmer of truth that might evolve, with proper prodding into realization of
Christian truth.Iw Exactly. At some point the textual analysis of the theoretical
implausibility of the universal lawIIomust be supplemented by the political and
anthropological analysis of what those who imagine they possess such a law are
enabled to do to others as a result. To track governance to its real lair, it is this
logic that needs further investigation.
lo) M. Foucault, The History of Sexuality: an Introduction (Harmondsworth, Penguin, 1990);
Discipline and Punish (Harmondsworth, Penguin, 1991). See also S. Clegg, Framework of Power
(London. Sage, 1989). pp. 167-78.
See J. Tully, Governingconduct, in E. Leites (ed.), Conscience and Casuistry in Early Modern
Europe (Cambridge, Cambridge University Press, 1988).
Io7 A. MacIntyre, Whose Justice? Which Rationaliry? (London, Duckworth, 1988) p.336.
lm W. Connolly. IdentifylDiflerence (Cornell, Cornell University Press, 1991). p.42.

lop Connolly, IdentifyIDifferencc pp.42-3.
P. Singer. Practical Ethics (Cambridge, Cambridge University Press, 1979) ch.1.
Q Political Siudia A m m i o n . 19w
Commentary
What Is Governance?
FRANCIS FUKUYAMA*
This commentary points to the poor state of empirical measures of the

quality of states, that is, executive branches and their bureaucracies. Much
of the problem is conceptual, as there is very little agreement on what
constitutes high-quality government. The commentary suggests four
approaches: (1) procedural measures, such as the Weberian criteria of
bureaucratic modernity; (2) capacity measures, which include both
resources and degree of professionalization; (3) output measures; and (4)
measures of bureaucratic autonomy. It rejects output measures and sug-
gests a two-dimensional framework of using capacity and autonomy as a
measure of executive branch quality. This framework explains the conun-
drum of why low-income countries are advised to reduce bureaucratic
autonomy while high-income ones seek to increase it.
This commentary is the beginning of an effort to better measure gov-

ernance, which at this point will amount to nothing more than an
elaboration of the issues complexity and the confused state of current
discussions. Before we can measure good governance, however, we
have to better conceptualize what it is.
The state, that is, the functioning of executive branches and their
bureaucracies, has received relatively little attention in contemporary
political science. Since the onset of the Third Wave of democratizations
now more than a generation ago, the overwhelming emphasis in com-
parative politics has been on democracy, transitions to democracy,
human rights, transitional justice, and the like. Studies of nondemo-
cratic countries focus on issues like authoritarian persistence, meaning
that the focus still remains the question of democracy in the long run
or democratic transition. In other words, everyone is interested in
studying political institutions that limit or check powerdemocratic
accountability and rule of lawbut very few people pay attention to
the institution that accumulates and uses power, the state.
*Stanford University
Governance: An International Journal of Policy, Administration, and Institutions, Vol. 26, No. 3,
July 2013 (pp. 347368).
2013 Wiley Periodicals, Inc.
doi:10.1111/gove.12035
348 COMMENTARY
The relative emphasis on checking institutions rather than power-

deploying institutions is evident in the governance measures that have
been developed in recent years. There are numerous measures of the
quality of democracy like the Freedom House and Polity measures, as
well as newer and very sophisticated ones like the Varieties of Democ-
racy project led by Michael Coppedge, John Gerring, et al. We have
fewer measures of Weberian bureaucracythat is, the degree to which
bureaucratic recruitment and promotion is merit based, functionally
organized, based on technical qualifications, etc. One of the only studies
to attempt to do this was by Peter Evans and James Rauch back in 2000,
but their sample was limited to 30 odd countries and produced no
time-series data. The Varieties of Democracy project is also collecting
data on bureaucratic quality based on expert surveys. Other bureau-
cratic quality measures include the Bertelsmann Transformation Index,
which focuses on how effectively policymakers facilitate and steer
development and transformation processes, and the proprietary
Political Risk Services Group International Country Risk Guide. Four of
the six World Bank Institutes Worldwide Governance Indicators
purport to measure aspects of state capacity (government effectiveness,
regulatory quality, political stability and absence of violence, and
control of corruption), but these are aggregates of other existing mea-
sures and it is not clear how they map onto the Weberian categories. For
example, does a good absence of violence score mean that there is
effective policing? I suspect that there isnt much by way of street crime
or military coup attempts in North Korea. (These problems are also true
of the Banks internal CPIA scores.) Finally, Bo Rothsteins Quality of
Governance Institute in Gothenberg has developed a set of measures of
quality of governance for 136 countries worldwide, as well as a more
detailed survey of 172 regions within the European Union. It is based
again on expert surveys focusing on the degree of a states impartiality,
which Rothstein argues is a proxy for overall state quality.
The bias against thinking about state capacity is particularly strong

among rational choice institutionalists. Most in this school begin with
Mancur Olsons assumption that states are predatory and that the chief
aim of political development is the creation of institutions like rule of
law and accountability that limit the states discretion. This school
assumes that all states have the power to be predatory, and seldom
raise the question of where state capacity comes from in the first place,
or how it increases or decreases over time. Frankly, it would be very
hard to develop a rational choice theory of state capacity, as capacity in
any organization is so heavily influenced by norms, organizational
culture, leadership, and other factors that do not easily fit into a model
based on economic incentives.
COMMENTARY 349
In addition, there has been a large literature on public sector reform

coming out of institutional economics, public administration, and from
the communities of practice surrounding development agencies
seeking to improve governance. The approaches favored by economists
sought to conceptualize governance in a principalagent framework,
and have sought to control corruption and bad administration through
manipulation of incentives. Many of the new approaches under this
framework sought to bring market-like incentives into the public
sector through creation of exit options, competition, manipulation of
wage scales, shortening of accountability routes, and better methods of
monitoring and accountability. Many of the techniques of New Public
Management was in some sense an outgrowth of these approaches,
though their applicability to developing world contexts has been ques-
tioned (Grindle 2004; Heady 1991; Pollitt and Bouckaert 2004; Schick
1998; World Bank 2004).
The existing measures of state quality or capacity have a number of

limitations. There is an inherent weakness in expert surveys, espe-
cially when trying to create time-series data. As the concept of good
governance is not well established, different experts may intend dif-
ferent things when responding to the same survey question. For
example, there is an important difference between clientelism and
outright corruption; in the former there is true reciprocity between
patron and client, whereas in the latter there is no obligation on the
part of the corrupt official to give anything back. The economic
impact of corruption varies tremendously depending on whether the
corruption tax is 10% or 50%, and the quality and nature of the
services that clients get in return. In China, for example, corruption
seems to be pervasive, but the tax rate is lower and the service pro-
vision rate much higher than in, say, sub-Saharan Africa. None of the
existing corruption surveys are, as far as I know, able to make dis-
tinctions of this sort.
Bo Rothstein makes a number of persuasive arguments that impar-

tiality ought to be the core measure of the quality of government.
However, it would seem entirely possible that a state could be
highly impartial and still lack the capacity and/or autonomy to
effectively deliver services. Rothstein argues that impartiality implies
the existence of sufficient capacity. This may be true, but it is some-
thing that needs to be empirically verified rather than simply
asserted.
In addition, there are a number of Rule of Law measures that relate to

bureaucratic quality, such as those published by the ABA Rule of Law
Initiative and the World Justice Projects Rule of Law Index. Some
350 COMMENTARY
Chinese scholars have tried to measure the spread of rule-based

decision making by measuring the number of administrative cases
filed against government agencies, as well as the percentage of such
cases that are won by the plaintiffs.
The rule of law is defined differently by different scholars and can
mean, alternatively, law and order, property rights and contract
enforcement, observance of substantive Western norms of human
rights, and constitutional constraints on the power of the executive
(Kleinfeld 2006). Some scholars have distinguished between rule by
law, in which the executive uses law and bureaucracy as an instru-
ment of power, and rule of law, in which the executive is itself con-
strained by the same laws that apply to everyone else. In many
respects rule by law overlaps with state quality, as we want states to
operate by general, transparent, impartial, and predictable rules. Rule
of law in the narrow sense of constitutional constraints on the execu-
tive, on the other hand, is closely associated with democracy. The
Prussian/German Rechtsstaat in the 19th century, Meiji Japan, and
contemporary China were all authoritarian states that could be said to
have rule by law but not rule of law. This means that certain aspects
of rule of law would be useful as measures of state quality. On the
other hand, many rule of law measures measure what is measurable
rather than the underlying quality of law, so we would need to be
careful in selecting them.
Definitions
As a starting point, I am going to define governance as a governments
ability to make and enforce rules, and to deliver services, regardless of
whether that government is democratic or not. I am more interested in
what Michael Mann labels infrastructural rather than despotic
power (Mann 1984). The reason I am excluding democratic account-
ability from the definition of governance is that we will later want to be
able to theorize the relationship between governance and democracy.
The current orthodoxy in the development community is that democ-
racy and good governance are mutually supportive. I would argue that
this is more of a theory than an empirically demonstrated fact, and that
we cannot empirically demonstrate the connection if we define one to
include the other.
In this initial conceptualization, the quality of governance is different
from the ends that governance is meant to fulfill. That is, governance
is about the performance of agents in carrying out the wishes
of principals, and not about the goals that principals set. The
government is an organization that can do its functions better or
COMMENTARY 351
worse; governance is thus about execution, or what has traditionally

fallen within the domain of public administration, as opposed to
politics or public policy.1 An authoritarian regime can be well
governed, just as a democracy can be maladministered. (As we
will see below, this distinction cannot always be maintained quite
so neatly; principals can set self-undermining tasks for their
agents.)
As Rothstein (2011) points out, it is not so easy to separate governance
as implementation from the normative ends that government is meant
to serve. It is not clear that a well-governed state is one that has
ruthlessly efficient concentration camp guards as opposed to bribable
ones. On the other hand, once one starts to introduce substantive ends
as criteria for good government, it is hard to know where and when to
stop. As Rothstein points out, the existing Worldwide Governance
Indicators embed a number of normative policy preferences (e.g., less
rather than more regulation) that color the final results. Would we want
to argue that the U.S. military is a low-quality one because it does
things we disapprove of, say, invading Iraq?
Rothstein argues that use of the criterion of impartiality solves this
problem as it is both normative and embeds what most people under-
stand by good government. However, for reasons I will elaborate
below, I dont think that impartiality by itself is a sufficient metric.2 I
want to put the normative question to the side for the time being,
however, particularly because I am interested in developing measures
that will work for both authoritarian and democratic regimes. Focus-
ing on an extreme case like concentration camps should not distract us
from the fact that there are many valence issues like provision of
education, health, or public safety that are shared by virtually all gov-
ernments, in which a more instrumental view of quality of governance
will suffice.
If we accept this definition of the object we are trying to study, then
there are at least four broad approaches to evaluating the quality of
governance: procedural measures, input measures, output measures,
and measures of bureaucratic autonomy.
Procedural Measures
The most classic effort to define governance in terms of procedures was
Max Webers famous characterization of modern bureaucracy in
Economy and Society (Weber 1978, 220221). We continue to use the
term Weberian bureaucracy as an ideal type to which we hope
highly corrupt, neo-patrimonial states will eventually conform. It
might be useful to review Webers conditions here:
352 COMMENTARY
1. Bureaucrats are personally free and subject to authority only within

a defined area.
2. They are organized into a clearly defined hierarchy of offices.
3. Each office has a defined sphere of competence.
4. Offices are filled by free contractual relationship.
5. Candidates are selected on basis of technical qualifications.
6. Bureaucrats are remunerated by fixed salaries.
7. The office is treated as the sole occupation of the incumbent.
8. The office constitutes a career.
9. There is a separation between ownership and management.
10. Officials are subject to strict discipline and control.
Conditions 15 and 9 are probably at the core of what people think

of when they talk about modern bureaucracy: They clearly delin-
eate such an organization from the kinds of venal or patrimonial
office that existed in Europe under the Old Regime, or that exist in
contemporary neo-patrimonial developing countries today. However,
characteristics 6, 7, 8, and 10 are more problematic. Condition 6,
fixed salaries, is not compatible with the kinds of incentives often
offered bureaucrats under New Public Management. Conditions 7
and 8 are not true of many mid-level officials in contemporary
America, in both the public and private sectors. One could say that
the United States fails to live up to the Weberian ideal, but it does
not seem likely that the quality of bureaucracy in the United States
would improve if it were impossible for talented individuals from
the private sector or the academy to serve in government for periods
of time. And condition 10 is incompatible with civil service protec-
tion, which during the Progressive Era was seen as a hallmark of
the modern bureaucracy that was replacing the patronage system.
More importantly, condition 10 suggests that bureaucrats are simply
robotic agents whose only purpose is to do the bidding of principals.
The idea of bureaucratic autonomythe notion that bureaucrats
themselves can shape goals and define tasks independently of the
wishes of the principalsis not possible under the Weberian
definition.
Nonetheless, certain procedural measures would remain at the core of

any measure of quality of governance. One would want to know
whether bureaucrats are recruited and promoted on the basis of merit
or political patronage, what level of technical expertise they are
required to possess, and the overall level of formality in bureaucratic
procedure.
COMMENTARY 353
Capacity Measures
The problem with all procedural definitions of bureaucracy is that the
procedures, however defined, may not actually correlate with the posi-
tive outcomes expected from governments. We assume that a Webe-
rian bureaucracy will produce better services than one that is highly
discretionary and patrimonial, yet there may be circumstances where
the latters lack of rules result in faster and better tailored responses.
Enforcement power is not part of Webers definition; it is possible to
have an impersonal, merit-based bureaucracy that nonetheless is
extremely poor at getting things done. To say that a bureaucrat is
selected on the basis of merit does not define merit, nor does it
explain whether the officials skills will be renewed in light of chang-
ing conditions or technology.
The most commonly used measure of capacity is extractive capacity,
measured in terms of tax extraction. Tax extraction measures capacity
in two ways: First, it takes capacity, however generated, in order to
extract taxes; second, successful tax extraction provides resources that
enable the government to operate in other domains. Tax extraction
rates can be measured both by the percentage of taxes to gross domes-
tic product, as well as by the nature of taxationthat is, whether it is
based on income or wealth, or indirect taxation (as income and wealth
taxes are much more difficult to extract than indirect taxes).
While tax extraction is a reasonable starting point for measuring capac-
ity, it has several important limitations:
1. There is a difference between extractive potential and actual extrac-

tion rates. Actual tax rates are set not just by extractive potential, but
by policy choices regarding the optimal rate and types of taxation.3
The United States proved it had the potential to extract significantly
higher levels of taxes during the two World Wars, because it had an
overriding national interest in doing so. The peacetime level reflects
normative preferences for the optimal size of government, which
may vary between countries of identical potential capacity.4
2. A given level of taxation does not necessarily translate into the
efficient use of tax revenues. Revenues can be wasted on poor
administration, unproductive transfers, or outright corruption.
Bureaucratic outputs are the result not just of resource inputs, but of
things like organizational culture. Judith Tendler has written about a
poor and underresourced state in Northeast Brazil that nonetheless
achieved very good governance outcomes (Tendler 1997).5
3. For many countries, government revenues are based on resource
rents or international transfers rather than domestic taxation. In
many countries such rents and transfers constitute the vast majority
354 COMMENTARY
of government revenues. One could argue that if taxation is going to

be used as a measure of state capacity, then resource rents ought to
be excluded.
Tax extraction rates are hardly the only possible measures of state
capacity. States perform a whole variety of functions, any one of which
can be used as a proxy for state capacity as a whole. Taxation is a useful
proxy for general capacity because it is a necessary function of all
states, and one for which considerable data exist. In an ongoing doc-
toral research, Melissa Lee and Nan Zhang have suggested using the
capacity to generate accurate census data as an alternative proxy for
capacity, as population registration is a very basic state function.
Beyond taxation, another critical measure of capacity is the level of
education and professionalization of government officials. Central
banks in the early 21st century across the developing world are incom-
parably better run than they were in the lead-up to the debt crises of
the 1980s in Latin America and sub-Saharan Africa, due in part to the
significantly higher degree of professionalism in their staffing. A key
aspect of state building in the United States during the Progressive Era
was the replacement of incompetent political patronage appointees
with university-trained agronomists, engineers, and economists.
A focus on the degree of professionalization of the bureaucracy par-
tially solves the problem of how to measure levels of corruption, a
measure that is not dependent on expert or perception surveys. All
professional education (with the possible exception of business
schools) embeds a strong normative element in which service to ones
profession and broader public goals is paramount. A doctor, for
example, is supposed to act primarily in the interests of the patient
rather than seeking first to maximize his or her individual benefit. Of
course, all professionals are also selfish individuals who can act in a
corrupt manner. But in modern organizations we trust highly edu-
cated professionals with a much higher degree of discretion because
we assume or hope that they will be guided by internal norms in cases
where their behavior cannot be monitored from the outside.
As state capacity varies substantially across functions, levels of govern-
ment, and regions, one would ideally want capacity measures for all
major government agencies. In Brazil, for example, it has been widely
recognized that certain islands of excellence exist within the Brazil-
ian state that would be missed by an aggregate measure. Thus, an
article by Katherine Bersch, Sergio Praa, and Matthew Taylor devel-
ops capacity measures across more than 300 different Brazilian federal
agencies (Bersch, Praa, and Taylor 2012). Obviously, this kind of data
does not exist for many countries, and even in Brazil the authors do
COMMENTARY 355
not have similar statistics for capacity at the state, local, and municipal
levels where a great deal of governance happens. For evaluating a
country like China, it would be very important to generate this type of
disaggregated data, as there is a widely held perception that the quality
of governance varies enormously across the different levels and func-
tions of government.
As a kind of compromise between an unachievable ideal of fully dis-
aggregated capacity data and a limited aggregate measure, it might be
possible to specify a subset of government functions on which data
should be collected. This could be a set of functions theoretically per-
formed by all governments (e.g., macroeconomic policy management,
basic law and order, primary and secondary education, population
registration), or it could incorporate data on how expansive the func-
tions performed are (e.g., giving extra credit if a government is able to,
say, regulate pharmaceuticals).
Output Measures
Good procedures and strong capacity are not ends in themselves. We

want governments to do things like provide schooling and public
health, public security, and national defense. This suggests an alterna-
tive measure of government quality, a measure of final output. One
could look at literacy, primary and secondary education test scores, or
various measures of health to get some idea as to how governments are
performing.
Attractive as output measures sound, there are several big and, in my
view, decisive drawbacks to their use. First and most important,
outputs like health or education are not simply the consequences of
public action; the public sector interacts with the environment around
it and the society it is dealing with to produce results. For example, the
Coleman Report on U.S. education in the 1960s showed that educa-
tional outcomes depended much more strongly on factors like friends
and family of students than they did on public sector inputs to edu-
cation (Coleman 1966). Joel Migdals model of weak states and strong
societies suggests that a governments ability to penetrate or regulate a
society depends on the ratio of two factors, state capacity and the
self-organization of the underlying society. Two states could have equal
regulatory capacity but unequal regulatory outcomes because the
society in one is far better organized to resist state penetration than the
other (Migdal 1988).
A second problem is that measuring output is itself problematic meth-
odologically. Public sectors produce primarily services, which can be
356 COMMENTARY
notoriously hard to measure. For example, standardized test scores, a

common way of evaluating educational outcomes, have long been
under attack as poor measures of education, and for creating incentives
to teach to the test. Measures of rule of law, like time to trial, rate of
case clearances, etc., say nothing about the quality of the justice being
produced by a legal system.
Finally, outcome measures cannot be so easily divorced from proce-
dural and normative measures. A police state may succeed in control-
ling street crime by massively arresting and torturing suspects, yet
most believers in liberal democracy would accept a higher degree of
crime in exchange for procedural protections of individual rights. Even
if one is morally neutral about whether torture is justified as a police
method, one would want to know whether it is employed routinely in
evaluating a government.
My own sense is that the problem of the tainting of output measures by
exogenous factors means that they should not be used as state quality
measures in the first place. One could employ a variety of econometric
techniques to control for these exogenous factors, but that entails
another layer of complexity and problems. In fact, it might be better to
leave output as a dependent variable to be explained by state quality,
rather than being a measure of capacity in itself. If output is not a valid
measure of state quality, it implies that we also cannot generate useful
measures of government efficiency as a measure of state quality, as the
latter represents a ratio of state inputs to outcomes.
Bureaucratic Autonomy
A final measure of the quality of government is the degree of bureau-

cratic autonomy possessed by the different components of the state.
Samuel Huntington makes autonomy one of his four criteria of
institutionalization; highly institutionalized political systems have
bureaucracies with high autonomy. The opposite of autonomy in Hun-
tingtons terminology is subordination (Huntington 2006).6
Autonomy, properly speaking, refers to the manner in which the politi-
cal principal issues mandates to the bureaucrats who act as its agent.
No bureaucracy has the authority to define its own mandates, regard-
less of whether the regime is democratic or authoritarian. But there are
a wide variety of ways in which mandates can be issued. Ideally, the
principal should set a broad mandate to the agent, for example, pro-
curement of an advanced strike fighter. But the principal can also issue
many other mandates as well regarding the way in which to carry out
the broad mandate, such as purchasing a strike fighter using contrac-
COMMENTARY 357
tors that increase employment in Congressional districts X and Y, or

through minority and women-owned businesses, or to achieve Z
degree of performance desired by a rival service. In other cases the
principal can issue mandates regarding the bureaucracys recruitment
and promotion of personnel, requiring that they hire certain individu-
als, or else setting detailed rules for personnel management.
Political principals often issue frequently overlapping and sometimes
downright contradictory mandates. Indeed, there can be multiple prin-
cipals in many political systems, that is, political authorities with equal
legitimacy able to issue potentially contradictory mandates. State-
owned utilities, for example, often have mandates to simultaneously
do cost recovery, universal service to the poor, and efficient pricing to
business clients, each promoted by a different part of the political
system. These different mandates obviously cannot be simultaneously
achieved, and generate bureaucratic dysfunctionality. Amtrak could
become a profitable and efficient railway if it were not under Congres-
sional mandates to serve various low-volume rural communities. In
China there are often duplicate functional agencies, one reporting
through a chain of command that goes through national ministries, the
other reporting to municipal or provincial governments; it is not
always clear how conflicts between them are to be resolved.
Autonomy therefore is inversely related to the number and nature of
the mandates issued by the principal. The fewer and more general the
mandates, the greater autonomy the bureaucracy possesses. A com-
pletely autonomous bureaucracy gets no mandates at all but sets its
own goals independently of the political principal. Conversely, a non-
autonomous or subordinated bureaucracy is micromanaged by the
principal, which establishes detailed rules that the agent must follow.
An appropriate degree of bureaucratic autonomy does not mean that
bureaucrats should be isolated from their societies or make decisions at
odds with citizen demands. Indeed, if the general mandate is to
provide high-quality services in health or education, the bureaucracy
would need considerable feedback and criticism from the citizens that
it is trying to serve. It also does not exclude extensive collaboration
with private sector or civil society organizations in service delivery.
Indeed, an appropriately autonomous bureaucracy should be able
to make judgment calls as to when and where to engage in such
collaborations.
It would seem that the relationship between autonomy and quality of
government would look like an inverted U (see Figure 1). At one
extreme, that of complete subordination, the bureaucracy has no room
for discretion or independent judgment, and is completely bound by
358 COMMENTARY
FIGURE 1
Bureaucratic Autonomy and Quality of Government
Government Quality
detailed rules set by the political principal. At the other end of the
x-axis, that of complete autonomy, governance outcomes would also
be very bad, because the bureaucracy has escaped all political control
and sets not just internal procedures but its goals as well. This is
basically the idea contained in Peter Evans concept of embedded
autonomy: Bureaucrats need to be shielded from certain influences of
social actors, but also subordinate to the society with regard to larger
goals (Evans 1995).
There are myriad examples of excessive subordination leading to poor
performance. One of the worst forms is when bureaucracies lose
control over internal recruitment and promotion to the political
authorities and are staffed entirely by political appointees. This is in
effect what happens in clientelistic political systems. But even in the
absence of clientelism, bureaucracies can be excessively slow moving
and indecisive because they are excessively rule bound. However, the
curve in Figure 1 slopes downward at the left end of the x-axis, which
represents full autonomy. Both Imperial Germany and Japan in the
periods before World War I and World War II, respectively, suffered
from this problem. Both countries had developed very high quality,
autonomous bureaucracies, particularly their military services, which
then took over from the political authorities the task of formulating
foreign policy.
The inflection point of the curve in Figure 1 is shifted to the right,
however, due to a general recognition that the dangers of excessive
micromanagement are greater than those posed by excessive
COMMENTARY 359
autonomy. A high degree of autonomy is what permits innovation,

experimentation, and risk taking in a bureaucracy. In Daniel Carpen-
ters The Forging of Bureaucratic Autonomy, both the Post Office and the
U.S. Forest Service are portrayed as high-quality autonomous bureau-
cracies during the Progressive Era precisely because they innovated
and devised agendas not strictly spelled out by Congress (Carpenter
2001). This same insight is embedded in the evolution of the U.S.
Armys basic field manual for combined arms operations, FM 100-5. In
rethinking combined arms doctrine in light of the Vietnam War, the
drafters of the manual shifted emphasis from centralized command
and control to more flexible Mission Orders under which the com-
mander only set broad goals, and devolved implementation to the
lowest possible echelon of the command structure. The latter were in
other words agents who were permitted a high degree of autonomy,
which included toleration of failure if they sought to innovate or
experiment.7 More broadly, one could argue that modern private sector
organizations have evolved over time away from rigid Taylorite hier-
archies reflecting strict Weberian criteria to more flexible, flatter orga-
nizations that delegate far more authority to lower levels of the
organization.
If an appropriate degree of bureaucratic autonomy is an important
characteristic of high-quality government, then neither the Weberian
nor the principalagent models can stand intact as frameworks for
understanding how bureaucracies ought to work. The Weberian
model, as noted earlier, assumes that bureaucrats are essentially rule-
bound implementers of decisions made by political authorities; they
may have technical capacity but they do not have the authority to set
agendas independently. The principalagent framework is inadequate
as well because it, too, assumes that agents are simply tools of the
principals, whereas in a good bureaucracy authority often flows in the
reverse direction, from the agent to the principal (the latter point, basic
in an older tradition of public administration, is made by Herbert
Simon; Simon 1957).
How do we measure bureaucratic autonomy? I believe that this is one
of the most central and difficult issues in constructing a good measure
of government quality. The most common approach is to use expert
surveys in which experts are asked to evaluate the autonomy of a given
bureaucracy. Expert surveys are particularly problematic in this area
because the very concept of autonomy has been poorly specified, and
it is not clear exactly what it is that experts are being asked to judge. Do
they have adequate criteria for judging what proper and improper
mandates are, or to look for multiple or conflicting mandates as a
measure of subordination?
360 COMMENTARY
It would be nice therefore to have a more objective measure of

autonomy. As autonomy is the opposite of subordination, one could
use the degree of clientelism or political interference in bureaucratic
operations as a measure. One could look, for example, at the relative
number of classified versus political positions in a bureaucracy.
However, this gets at only one type of subordination related to per-
sonnel. Political principals can hamstring bureaucracies by issuing
multiple contradictory mandates that have nothing to do with staffing,
or by setting excessively detailed rules for bureaucratic behavior.
Capacity and Autonomy

It would seem to be the case that the quality of government is the result
of an interaction between capacity and autonomy. That is, more or less
autonomy can be a good or bad thing depending on how much under-
lying capacity a bureaucracy has. If an agency were full of incompetent,
self-dealing political appointees, one would want to limit their discre-
tion and subject them to clear rules. The assertion embedded in
Figure 1 that the optimal amount of autonomy is shifted to the right is
true only in high-capacity countries. In very low capacity countries, the
opposite would be the case: One would want to circumscribe the
behavior of government officials with more rather than fewer rules
because one could not trust them to exercise good judgment or refrain
from corrupt behavior. This is why Robert Klitgaard coined the
formula Corruption = Discretion - Accountability (Klitgaard 1988).
This is also why development agencies have been advising poor coun-
tries to limit bureaucratic discretion in recent years. On the other hand,
if the same agency were full of professionals with graduate degrees
from internationally recognized schools, one would not just feel safer
granting them considerable autonomy, but would actually want to
reduce rule boundedness in hopes of encouraging innovative behavior.
Figure 2 illustrates how the optimal autonomy curves would differ for
four hypothetical countries of differing levels of capacity. For each, the
curve slopes downward at the extremes, because every bureaucracy
can have too much or too little autonomy. But the lower-capacity
countries have their inflection points shifted to the left, while they are
shifted right for higher-capacity countries.
One can control the behavior of an agent either through explicit formal
rules and incentives or through informal norms and habits. Of the two,
the latter involves substantially lower transaction costs. Many profes-
sionals are basically self-regulated, due to the fact that (1) it is hard for
people outside their profession to judge the quality of their work and
(2) part of their education, as noted previously, consists of socialization
COMMENTARY 361
FIGURE 2
Optimal Levels of Autonomy for Differing Levels of Capacity
Government Quality
Capacity
level 4
Capacity
level 3
Capacity
level 2
Capacity
level 1
to certain professional norms that seek to preclude certain types of

self-seeking behavior. The higher the capacity of a bureaucracy, then,
the more autonomy one would want to grant them. In judging the
quality of government, therefore, we would want to know about both
the capacity and the autonomy of the bureaucrats.
One would want, in other words, to be able to empirically locate the
agency on the matrix shown in Figure 3. The line sloping downward
and to the left represents the line drawn through the inflection points
of Figure 2, representing optimal levels of autonomy for a given level
of capacity. Bureaucracies that were to the left of the line would be
hobbled by excessive rules; those to the right of it with excessive
discretion. For the past decade, international donors have been advis-
ing developing countries to decrease the amount of discretion in the
behavior of their bureaucracies. From Figure 3 it would appear that
this is only contingently good advice; in a high-capacity state, one
would like to have more rather than less discretion.
The framework in Figure 3 suggests that there are two quite separate
approaches to public sector reform. One always wants to move up the
y-axis to higher capacity, particularly with regard to the professional-
ism of the public service. This, however, is not something that can be
done easily, and it is not something that can in any case be accom-
plished in a short period of time. If a country cannot significantly
upgrade capacity in the short run, one would want to shift the degree
of autonomy toward the sloping line. This would mean moving
toward the left in a low-capacity country, and toward the right in a
362 COMMENTARY
FIGURE 3
Autonomy and Capacity
High capacity
Sweet spot
too many rules excessive discretion
Subordination Autonomy
Low capacity
FIGURE 4
Reform Paths
High capacity
Germany Singapore
US
China
too many rules excessive discretion
Subordination Autonomy
India??
Nigeria
Low capacity
COMMENTARY 363
high-capacity country. Figure 4 contains some hypothesized positions,

aggregated across the whole government, for different countries, and
suggests that while Nigeria and China need to move left, the United
States needs to move right. However, China needs to end up at a point
with significantly more autonomy than Nigeria because of its much
higher capacity.
Trying to locate India on this matrix demonstrates some of the com-
plexities of this analysis. India is famous both for high levels of cor-
ruption and clientelism, and for simultaneously having excessive rules
and bureaucratic red tape. India clearly needs much greater state
capacity across the board. But does it need more or less autonomy? The
answer to the latter question is probably both, dependent on specific
context. Given the recent scandal, the agency handling spectrum auc-
tions needs to be subjected to much stricter rules; on the other hand,
the Hyderabad Municipal Water Authority needs to be relieved of its
multiple and conflicting political mandates if it is to function properly.
This then suggests why devising single aggregated measures for
quality of governance can be inadequate and misleading.
Conclusion
It is clear that in evaluating the quality of governance in large, complex

countries like China or the United States, the existing quantitative
measures are woefully inadequate. If we are to establish desiderata for
better ones, we would have to answer the following questions:
If we are to use procedural measures of government quality, which

on Webers list do we want to keep?
For how many countries could we collect disaggregated capacity
data?
If we cannot collect a full set of capacity measures, what are the best
proxies for aggregate capacity? Beyond tax extraction levels, can we
come up with measures of bureaucratic professionalization?
How do we distinguish between actual and potential capacity, with
regard to a commonly used measure like tax extraction?
How, exactly, are we going to define bureaucratic autonomy, and
what measures are available as proxies for it?
How important is it to have quantitative measures at all, as opposed
to qualitative descriptions of process, or else case studies of particu-
lar areas of governance?
This commentary does not pretend to answer these questions, but only
to serve as a basis for discussion. As we cannot measure what we
364 COMMENTARY
cannot adequately conceptualize, we have to start with the concept

first. I have laid out two separate dimensions of governance, capacity
and autonomy, and suggested some of the components that make
them up. Capacity, in particular, consists of both resources and the
degree of professionalization of bureaucratic staff. I have further
posited that quality of governance is ultimately a function of the inter-
action of capacity and autonomy, and that either one independently
will be inadequate as a measure of government quality. Finally, I have
also suggested that states need to be disaggregated into their compo-
nent parts, by function, region, and level of government, and that we
need both capacity and autonomy measures for all of these compo-
nents. Obviously, this volume of data does not exist for most countries,
and may not exist for any country. How much could be generated? It
might be useful to start with a large, relatively data-rich country like
the United States, and see how far we could get.
Acknowledgments
This commentary has been extensively revised based on presentations

and discussions generated by the Governance Project at Stanford Uni-
versitys Center on Democracy, Development, and the Rule of Law. I
would like to also thank the reviewers at the Center for Global Devel-
opment for their comments.
Notes
1. This distinction was made in Woodrow Wilsons famous article (Wilson
1887). It is also made in Max Webers equally famous essay, Politics as a
Vocation (Weber 1946).
2. One would have to say that a concentration camp guard who executed
everyone he was ordered to kill was more impartial than one who played
favorites or spared certain individuals in return for bribes or sexual favors.
This points to the difference between impartiality of policies compared to
the impartiality of the way in which policies are executed.
3. Mancur Olson and others in the rational choice tradition argue that states are
predatory and that all states will seek to tax at a maximal rate, subject only to
limitations on capacity, and the time discount rates of the sovereign. There is,
however, considerable historical evidence that this is not true, and that states
have deliberately taxed well below their theoretical capacities for a variety of
reasons (Fukuyama 2011, 303305; Olson 1993).
4. Marcus Kurtz in his forthcoming book on the state in Latin America makes
use of this distinction (Kurtz 2013).
5. On the general importance of organizational culture, see DiIulio (1994) and
Wilson (1989).
6. One could use the term accountability as the antonym for autonomy;
however, accountability has certain normative implications that subordina-
tion does not.
COMMENTARY 365
7. This field manual was based on the operational doctrine that had been
developed by the German army from the end of World War I through the
beginning of World War II; Mission Orders are an American version of
Aufstragstaktik (Fukuyama and Shulsky 1997).
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Carpenter, Daniel. 2001. The Forging of Bureaucratic Autonomy: Reputations, Net-
works, and Policy Innovation in Executive Agencies, 18621928. Princeton, NJ:
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Coleman, James S. 1966. Equality of Educational Opportunity. Washington, DC: U.S.
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DiIulio, John J. 1994. Principled Agents: The Cultural Bases of Behavior in a
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Theory 4 (3): 277320.
Evans, Peter. 1995. Embedded Autonomy. Princeton, NJ: Princeton University Press.
Fukuyama, Francis. 2011. The Origins of Political Order: From Prehuman Times to the
French Revolution. New York: Farrar, Straus and Giroux.
Fukuyama, Francis, and Abram Shulsky. 1997. The Virtual Corporation and Army
Organization. Santa Monica, CA: Rand Corporation.
Grindle, Merilee S. 2004. Good Enough Governance: Poverty Reduction and
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Huntington, Samuel P. 2006. Political Order in Changing Societies. New Haven, CT:
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Kaufmann, Daniel, and Aart Kraay. 2009. Governance Matters VIII: Aggregate and
Individual Governance Indicators, 19962008. Washington, DC: World Bank
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Klitgaard, Robert. 1988. Controlling Corruption. Berkeley, CA: University of
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366 COMMENTARY
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Appendix: The Inadequacy of Existing Measures of Chinas Quality

of Government
If we accept the fact that quality of government is a mixture capacity and

autonomy, and that governments are themselves complex collections of
organizations, then it becomes clear that existing measures of governance
are highly inadequate. The Worldwide Governance Indicators produced
by the World Bank Institute (Kaufmann and Kraay 2009), as well as finer-
grained measures like Transparency Internationals Corruption Percep-
tion Index, treat single sovereign nations as the unit of analysis. Yet it is
obvious that the quality of governance varies enormously within coun-
tries, both by specific government function and by region. Moreover, one
cannot look at governance problems at one level only; many occur
because of interactions between levels of governments. A poor national
government can reduce the performance of a good local one, and vice
versa.
The problem of single country indicators is evident when we consider

something like Transparency Internationals Corruption Perception Index.
The 2011 index lists China as the 75th most corrupt country in the world.
It does a bit better than Brazil and Tunisia (both #73), it tied with Romania,
and it is just slightly better than Gambia and El Salvador. Yet this number
is virtually meaningless because it does not take account of the diversity of
outcomes within China. It is widely believed in China, for example, that
local governments there are much more corrupt than higher-level ones.
We do not in fact know whether this is true or not. Corruption varies not
just by level of government, but by region and by function; the railroad
ministry is very different from, say, the Central Bank.
There is also something very strange about the Worldwide Governance

Indicators rankings of China (see Table A1).
Chinas low rankings for Voice and Accountability and Rule of Law are not
surprising, given that no one argues either of these are Chinas strong suit.
The other four measures relate to what we are defining as governance.
While both the score and ranking for government effectiveness are higher
COMMENTARY 367
TABLE A1
Chinas 2010 Performance, Worldwide Governance Indicators (Scores Range
from -2.5 [Weak] to 2.5 [Strong])
Category Score Percentile
Voice and accountability -1.6 5

Political stability/no violence -0.77 24
Government effectiveness 0.12 60
Regulatory quality -0.23 45
Rule of law -0.35 44
Control of corruption -0.60 33
than for any other measure, China still places only in the 60th percentile.
But what possible meaning can such a figure have? Clearly many local
Chinese government authorities have huge problems; on the other hand,
others perform far better. In my purely subjective estimation, the effec-
tiveness of Chinas national government with regard to macroeconomic
management of a hugely complex modernization process over the past
three decades has been nothing short of miraculous, given the fact that
China was not just managing an existing set of institutions, but also
transforming them in a more market-friendly direction. Its performance
since the Asian financial crisis has arguably been better than that of the
United States, which nonetheless ranks in the 90th percentile.
In terms of the three categories above, what do existing measures of

governance measure? In the case of the WBI Worldwide Governance Mea-
sures (WWGM), it is hard to say, because they are an aggregate of many
other measures. Many of them are perception surveys or expert estimates,
which often reflect output measures, but may also include evaluations of
procedures and capacity. It is not clear whether any of the WWGM com-
ponents explicitly seek to measure bureaucratic autonomy. Presumably
categories like Political Stability/Control of Violence are exclusively
output measures (where Chinas low 24th percentile ranking seems a bit
bizarre). The Rule of Law measure has big problems, beginning with the
lack of definition of what is being measured. If rule of law is defined as
constraints on the executive, China should rank even lower than it does as
there are no real legal constraints on the behavior of the Chinese Commu-
nist Party. If on the other hand this category means something more like
rule by law (which would make it a component of governance), the
ranking should be considerably higher. Most Rule of Law measures tend
to be related to procedures or capacity rather than output, because the
output of a legal system is so hard to measure. But we actually have no
idea what the Chinese numbers actually mean or purport to measure.
368 COMMENTARY
Francis Fukuyama is the Olivier Nomellini Senior Fellow at the

Freeman Spogli Institute for International Studies at Stanford Univer-
sity. Dr. Fukuyama has written widely on issues relating to democra-
tization and international political economy. His book, The End of
History and the Last Man, was published by Free Press in 1992. His most
recent book, The Origins of Political Order, was published by Farrar,
Straus, and Giroux in 2011. Other books include America at the Cross-
roads: Democracy, Power, and the Neoconservative Legacy, and Falling
Behind: Explaining the Development Gap between Latin America and the
United States.
Copyright of Governance is the property of Wiley-Blackwell and its content may not be copied or emailed to
multiple sites or posted to a listserv without the copyright holder's express written permission. However, users
may print, download, or email articles for individual use.
American Law & Economics
Association Annual Meetings
Year Paper
Economic Regulation and Social

Regulation
Eric B. Rasmusen
Indiana University, Kelley Sch. Bus.
This working paper site is hosted by The Berkeley Electronic Press (bepress) and may not be
commercially reproduced without the publishers permission.
http://law.bepress.com/alea/15th/bazaar/art47
Copyright 2005
c by the author.
Economic Regulation and Social Regulation
3 April 2005
1social.tex, file 1
Eric Rasmusen
Abstract
Health, safety, morals, and the general welfare are the traditional subjects of the
police power of the state. When we think of government regulation we usually think of
economic regulation. This is generally ecient only for a narrow range of activities and
is subject to abuse by private parties who can profit from it. Social regulation is another
area of government regulation, however, and one where the presumptive eciency of laissez
faire disappears, because market imperfections are more common and capture by special
interests is less profitable. This does not immediately imply that the government should
engage in social engineering, because our current knowledge of social processes is primitive.
It does imply that courts should be reluctant to strike down social regulation on the grounds
that it is irrational.
Indiana University Foundation Professor, Department of Business Economics and Public

Policy, Kelley School of Business,Indiana University, BU 456, 1309 E. 10th Street, Blooming-
ton, Indiana, 47405-1701. Oce: (812) 855-9219. Fax: 812- 855-3354. Erasmuse@indiana.edu,
http://www.rasmusen.org.
http://www.rasmusen.org/social/social.htm.
I thank Lucien Bebchuk, George Bentson, Robert Ellickson, and David Westfall and partic-
ipants in seminars at George Mason, Harvard, Michigan, Vanderbilt, and Yale Law Schools and
the Emory Department of Economics for comments. My thanks does not imply their agreement
with what I write. Footnotes starting with xxx are notes to myself for future drafts.
Hosted by The Berkeley Electronic Press

TABLE OF CONTENTS
I. INTRODUCTION
II. ECONOMIC REGULATION
II.A. Standard Market Failure and Economic Regulation 1
II.A.1. Externalities . . .
II.A.2. Monopoly.
II.A.3. Imperfect Information
II.A.4. Multiple Equilibria
II.B. Government Failure and Economic Regulation III. SOCIAL REGULATION.
III.A. Social Regulation and Standard Market Failure
III.B. Special Reasons for Market Failure in Social Markets
III.B.1. Mental Externalities
III.B.1.a. Ideological
III.B.1.b. Sympathetic
III.B.1.c. Altruistic
III.B.1.d. Aesthetic
III.B.1.e. Private Sector Responses to Mental
III.B.2. Paternalism
III.B.2.a. Poor Judgement
III.B.2.b. Self-Control
III.B.3. Improving Tastes
III.B.3.a. Altruism
III.B.3.b. Duty IV. GOVERNMENT FAILURE IN SOCIAL REGULATION
IV.A. Rent-Seeking
IV.B. Government Mistakes
IV.B.1. Social Ecology
IV.C. The Usefulness of Tradition
IV.D. Explaining Past Social and Economic Regulation
V. CONCLUSIONS
VI. REFERENCES
VII. CASES CITED
1
xxx Find out about the page label command in latex.
2
1 INTRODUCTION
What you say is very fine indeed, Cephalus, I said. But as to this very thing,
justice, shall we so simply assert that it is the truth and giving back what a man
has taken from another, or is to do these very things sometimes just and sometimes
unjust? Take this case as an example of what I mean: everyone would surely say
that if a man takes weapons from a friend when the latter is of sound mind, and the
friend demands them back when he is mad, one shouldnt give back such things, and
the man who gave them back would not be just, and moreover, one should not be
willing to tell someone in this state the whole truth.
What you say is right, he said.
Then this isnt the definition of justice, speaking the truth and giving back what
one takes.2
Maintaining contracts and property rights- speaking the truth and giving back what one
takes are important functions of government. It is as appealing to modern Americans as to
ancient Greeks that people should be free to do what they want with their property, so long
as they respect other peoples property rights. There exists, at the same time, a strong feeling
that the economy would work better if the government intervened in it to control the prices
people charged when selling their property or the kinds of property they are allowed to sell, but
this feeling diminished sharply from the 1930s to the 1990s. After experiencing deregulation of
industries such as air travel, trucking, and telephone sales, both the educated and the uneducated
public seem to be less interested in government regulation of prices. The virtues of laissez faire
have come to be part of the conventional wisdom.
Not all life is monetized, even in America. Political issues are conventionally divided into
the Economic, the Social, and Foreign Aairs. Of Foreign Aairs we will say nothing, but in the
Social as in the Economic spheres, there is intense controversy over not only what the government
should make people do, but whether it should intervene at all. Table 1 lists a number of issues
in each sphere that have been controversial in America in the past decade, whether in political
campaigns or in the courts.
Table 1: SOCIAL ISSUES AND ECONOMIC ISSUES

2
Plato, The Republic, translated by Allan Bloom, Basic Books, (1968) at 331c.
3
Social Issues Economic Issues
Abortion The minimum wage

Legalizing marijuana Outsourcing (protectionism)
Homosexuality National health insurance
Gun control Social Security privatization
Pornography Medicare drug benefits for the elderly
Gambling Living wage ordinances
Most of the issues here are not what is conventionally called regulation, but they all involve
using the threat of the power of the State to restrict peoples behavior, rather than simply to raise
money for public goods. The idea of social insurance whether it be national health insurance,
Social Security, or Medicare is to require people to buy insurance, and whether they are required
to buy it from the government or from private companies is a secondary issue.
It is not entirely clear how these are divided into the social and the economic, either. Mar-
ijuana sales are, after all, market transactions, so why not call the ban on marijuana economic
regulation? The reason, I think, is that although this is a monetized market, the aim of the
regulation is not to improve the workings of the market, but to eliminate marijuana, to remove
it from the economy rather than to enhance its role.
In America there is a curious dierence between liberals and conservatives in their positions
on the role of government. On social issues, conservatives tend to support heavier government
regulation. This is only a tendency, of course it is liberals who want stricter regulation of guns,
for example but it is a tendency nonetheless. On economic issues, liberals tend to support
heavier government regulation. Libertarians, who would like to restrict government impositions
on freedom in both the economic and social spheres, enjoy criticizing liberals and conservatives
alike for inconsistency.
Table 2 lays out these tendencies in a two-by-two grid.3 There are four possible combinations
of attitudes towards regulation. I have mentioned those occupied by conservatives, liberals, and
3
Neoconservatives are perhaps defined by their foreign policy attitudes than anything else, but they
have been an important libertarian strand in American thought. Classic liberals might belong either
with American conservatives or libertarians, since most Victorians (e.g., Macaulay, Gladstone, Disraeli)
favored free trade but not free love, but John Stuart Mill is an important exception, who led the way for
modern liberalism he opposed Sabbatarian legislation and prohibition of strong drink, bigamy, and opium;
John Stuart Mill, On Liberty, 194, 196, 198, 203 (1859), in Utilitarianism, Liberty, and Representative
Government, E.P. Dutton and Co., Inc., 1951.
4
libertarians already; what remains is the attitude that the government ought to regulate both
social and economic behavior. This is less prominent in America, but is common in the rest
of the world, on both left and right. I have put European conservatives and Marxists in
that box, two groups that are hostile to each other as to particular regulations but which agree
that people behavior ought to be restricted. In Anglo-American thought, this attitude might be
labelled Tory, with the idea that the slowing of change in all spheres of life is an important
function of government.
Table 2: POLITICAL ATTITUDES
Social Regulation
FOR AGAINST
FOR European conservatives (Tories) American liberals

Marxists
Economic Regulation
American conservatives Libertarians
AGAINST Classic liberals (Whigs) Neoconservatives
Libertarians can claim human freedom as their highest good. Liberals put emphasis on a
variety of rights to decide behavior for oneself, most of which fall in the social sphere rather
than the economic. The European conservatives, Tories, and Marxists who support government
intervention broadly each have their own visions of the nations they are trying to construct. But
what of the Whigs? Is there a way to make their position consistent? We shall return to that
question later.
In both the economic and social spheres, deregulation has existed simultaneously with new
regulation. The general picture is one of increased tolerance, with libertarianism on the rise in
both the economic and social spheres among intellectuals, but with growing acceptance, also, of
government environmental, safety, and quality regulations. The success of the has been parallelled
by the success of the law- and- economics movement, many of whose adherents have a strong
tendency towards libertarianism. The economic approach to law has been applied in great detail to
economic regulation and deregulation, to the point where knowing some economics is indispensable
for anyone trying to do serious policy research in the area. It has been much less applied to social
regulation, although by 1992 it seems clear that in comparison with other developed countries,
the social problems of the United States are much more severe than the economic problems.
Is this simply because economics has nothing to say about nonmonetary problems? No.
5
The two driving ideas of economics are that of the rational maximizing individual, who chooses
actions depending on costs and benefits; and that of the competitive marketplace, which generates
predictable collective consequences from the independent actions of many individuals. These ideas
have been applied to many topics traditionally allocated to other disciplines such as political
science, law, sociology, and biology.4 The economic approach seems to explain behavior in a variety
of cultural and historical settings, and even the behavior of animals in laboratory experiments.5
Social interactions call for somewhat dierent tools of analysis than economic interactions, even
starting from the base of maximization and markets, but the rise of game theory and information
economics in the 1980s has vastly expanded the number of tools at our disposal, and we can
expect continued progress.
In the traditional interactions studied by economics, individually rational behavior tends

towards collectively optimal consequences. Smiths famed Invisible Hand guides property to be
traded until no one can benefit from future voluntary trades. At that point, almost by definition,
no intervention can make any one person better o without making someone else worse o.
Economists therefore favor the libertarian view that government regulation is unnecessary and
pernicious if society is to reach results that are optimal given the constraints of resources and
technology. People are often surprised by economists policy conclusions, because economists they
thought were liberal turn out to oppose the minimum wage and rent control, and economists they
thought were conservative turn out to favor legalization of marijuana and homosexuality. The
explanation is that in each case, the economist supports legalization of voluntary interactions
between consenting adults, which makes both parties to the transaction better o.
Government plays a role in recognizing and protecting property rights, but it decentralizes
authority by allocating those property rights to individuals. A property right is eectively the
right to take some action. If the horse, Dobbins, is allocated to A, A is allowed to take a number of
actions with respect to Dobbins to ride him, drown him, eat him, or sell him but B cannot do
any of those things without As permission. In the economic world of perfect competition, every
action is under the control of someone; there are no actions which a person cannot undertake if
he is willing to pay someone else enough to do so. In addition, the action is an alienable property
right; A can either ride Dobbins himself or sell that right to B. A government regulation or a
4
Gary Becker is the best known imperialist, e.g., Gary Becker(1974), A Theory of Social Interactions,
Journal of Political Economy, 82: 1063-1093 (November/December 1974); Gary Becker(1981), A Treatise
on the Family, Harvard University Press, 1981. He has been joined by many other scholars using rational
choice analysis in: Law, Richard Posner(1998) Economic Analysis of Law, 802 pp., 5th edition (1st edition,
1972), Aspen Law and Business, 1998; Sociology, James Coleman, Foundations of Social Theory (1990);
Political science, Peter Ordeshook, Game Theory and Political Theory: An Introduction (1986); Biology,
John Maynard-Smith(1982) Evolution and the Theory of Games, 224 pp., Cambridge University Press,
1982.
5
Raymond Battalio, John Kagel, Howard Rachlin & Leonard Green (1981) Commodity-Choice Behav-
ior with Pigeons as Subjects, Journal of Political Economy, 89:67-91 (February 1981).
6
social custom that forbade the riding of Dobbins by anyone, or made the right inalienable by
allowing only A to ride him would reduce welfare, because nobody would get the benefit of the
ride, or the benefit would go to A rather than to someone else that valued it more.
Economists are like Cephalus in The Republic: they view the role of government as to define
and protect property rights and to make people keep their promises. But Socrates dismisses
Cephalus and the economists definition of justice, only seven pages into the three hundred and
three pages of The Republic. He does not sco; this is the first definition of justice, and Cephalus
is the paradigmatic solid citizen, the pillar of society. Yet something is missing. This article will
try to determine whether given the assumptions of the economic approach the government does
serve any purpose other than to set property rights and settle contract disputes.
To these two functions, economists, and, I expect, Cephalus, would add the provision of
public goods such as national defense. Since the provision of public goods is independent of
regulation, in the sense that it imposes no constraints on individual behavior beyond requiring
that someone pay taxes, I will not discuss it further, except to briefly distinguish taxation from
regulation. Taxation is the use of government force to acquire funds with which to buy things.
Regulation is the use of government force to change peoples behavior. In both cases, governmen-
tion force is used, but the purposes dier. A pollution tax is really regulation, since its primary
purpose is to change behavior and only incidentally does it raise revenue. A requirement that
private employers provide health insurance is a tax since the end there is to buy things for people
that the government could pay for itself. This distinction has even been recognized in law, as the
celebrated Nollan case illustrates (Nollan v. California Coastal Com., 483 U.S. 825 (1987)). The
State of California would not let Mr. Nollan build a house unless he built a public path. The
U.S. Supreme Court ruled that this was not regulation, since the path did not solve any problem
created by building the house, but simply a tax, and a tax specific to the individual. This made
Californias requirement a taking without compensation. Since such takings are forbidden in the
U.S. Constitution, California was required to allow Nollan to build or else compensate him for
not building. In this paper, we will be concerned with regulation, not taxation.
I will argue that while the method of economics is useful for analyzing human interactions be-
yond the traditional economic markets, the default policy recommendation of laissez faire becomes
dubious if one goes too far afield. The old recommendation does not match local circumstances in
the newer provinces of economics empire. The analyst can still usefully assume that the individ-
ual acts rationally, but he cannot deduce that this leads to eciency in the absence of government
regulation and social custom. The positive predictions of economics will still be valid, but not
the usual normative conclusions. A presumption of the optimality of laissez faire is not a bad
thing for economic regulation, but for social regulation a better presumption is that the status
quo should be left untouched.6
6
The reader may be annoyed that I have not defined what is social and what is economic. A definition
may be very exact, and yet go but a very little way towards informing us of the nature of the thing defined;
7
This conclusion is important to the law because it implies that judges should not invali-
date statutes merely because they do not make sense on purely economic grounds. Judges who
pronounce on the reasonableness or rational basis of statutes and private covenants are too
self-confident, and they should be more deferential to the status quo of customary law and prac-
tice. The burden should be on those opposing the rules to show that they have a bad purpose,
not on those who support them to show that they have a good purpose. The argument will not
be based on making tradeos between standard economic goals and other values, as in discussions
that trade o eciency and equality. Here, eciency in the economists sense will be the only
goal, so the conclusions will be based on the utilitarian premises standard in economics, not on
religious or liberal premises. This requires some preliminary discussion to clarify societys objec-
tives. The objective, value maximization, will be to maximize utility by making the appropriate
tradeos. This is dierent from trying to reconcile absolute rules that conflict with each other or
from trying to discover the will of God. My hope is that by starting from the generally accepted
premise that it is better to make people happier, the analyst can come to useful conclusions about
how the government should restrict behavior. If it turns out that the resulting government regu-
lation oends an ethical or religious principle of the analyst, the analysis is nonetheless useful, in
showing that the principle cannot be imposed without reducing human happiness.
Even in a utilitarian framework, the individuals under analysis may have religious and ideo-
logical beliefs, and these will aect policy under value maximization. If some people believe that
God forbids people to work on Sunday or others believe that Kant forbids people to ban pornog-
raphy, the feelings of those people must be taken into account. The analysis will neither ignore
such beliefs nor take them as final: rather, they are data on utility to be fed into the utilitarian
calculus. If enough people are enough upset by Sunday work or pornography bans, those things
will be restricted.7 In evaluating both economic and social regulation, the objective will be to
examine taboos as means to increasing human happiness rather than as ends in themselves; the
but let the virtue of a definition be what it will, in the order of things, it seems rather to follow than to
precede our inquiry, of which it ought to be considered as the result. Edmund Burke, On the Sublime and
the Beautiful, p. 13. It is hard to define the boundary between the economic and the social, economics
and sociology, but in everyday language we seem to see a dierence. The economic sphere involves what is
private to the individual or an organization that produces goods for sale; the social sphere is what is left.
7
In law and economics, this approach is best known from the work of Richard Posner. See Michael Mc-
Connell & Richard Posner (1989) An Economic Approach to the Issues of Religious Freedom, University
of Chicago Law Review, 56: 1-xxx, Posner, Richard (1992) Sex and Reason, 458 pp., Harvard University
Press, 1992. I will not be addressing the concerns of those who object to universal commodification of
relationships or incommensurability of values. See Joseph Cropsey (1955) What is Welfare Economics,
Ethics, 65: 116-125 (xxx 1955). Reprinted in Political Philosophy and the Issues of Politics, University of
Chicago Press, 1977; or, for an overview, Matthew Adler, Law and Incommensurability: Introduction,
University of Pennsylvania Law Review, 146: 1169- xxx (xxx 1998). The utilitarian framework leaves
considerable room for analysis and is less liable to the criticism of assuming its conclusions than many
other approaches, as is evidenced by the dierences between Posners conclusions and my own.
8
Sabbath will be for man, not man for the Sabbath.8
The thrust of this book will be that laissez faire is the presumptive best policy in the economic
sphere, with, of course, many exceptions and special cases, but tradition is the presumptive best
policy in the social sphere. This is a modernized version of the argument of the English jurist
James Fitzjames Stephen.9 In Liberty, Equality, Fraternity, Stephen admires John Stuart Mills
Principles of Political Economy, with its careful explanations of the workings of the Invisible
Hand in economic markets, but he attacks Mills On Liberty as a confused muddling of utilitarian
principles. Mill, Stephen says, is willing to create human unhappiness merely for the sake of
abstract ideals (liberty, equality, and fraternity) that benefit no one and lack a rational basis.10
This was a dispute between two Liberals, each claiming to start from the same premises of
maximization of human happiness as the goal of society. This article will start from the same
premises, with the dierence that it will update the discussion using twentieth century economic
theory.
We thus will end up providing a justification for the attitude of the Whigs in Table 2,
who tend to favor social regulation and oppose economic regulation. The justification will be
a utilitarian one: that these tendencies will, if properly used, result in the greatest amount of
human happiness.
Here is an outline of how we will proceed. Chapter 2 sets out what economists mean by
eciency. Chapter 3 shows why laissez faire is good economic policy, and then sets out the usual
special cases where economic regulation is helpful. Chapter 4, the heart of the book, begins to
discuss laissez faire and regulation in the social context, pointing out the important role of mental
externalities. Chapters 6, 7, and 8 look at other reasons for regulation that apply more in the
social than in the economic context poor information, market power, and multiple equilibria.
Even if markets fail, governments fail too, and Chapter 9 looks at government failure in the
context of social regulation. Chapter 10 is about self-regulated communities, and discusses the
role of private norms. Chapter 11 concludes, with comments on the growing importance of getting
social regulation right, as opposed to economic regulation.
8
The intellectual ancestor of this approach is David Hume: But there is this material dierence between
superstition and justice, that the former is frivolous, useless, and burdensome; the latter is absolutely
requisite to the well- being of mankind and existence of society.... Were the interests of society nowise
concerned, it is as unintelligible why anothers articulating certain sounds, implying consent, should change
the nature of my actions with respect to a particular object, as why the reciting of a liturgy by a priest,
in a certain habit and posture, should dedicate a heap of brick and timber and render it thenceforth and
forever sacred. David Hume (1751) An Inquiry Concerning the Principles of Morals, p. 29, Bobbs- Merrill
Co. Inc. 1957.
9
James Stephen, A History of the Criminal Law of England (1883)
10
James Stephen, Liberty, Equality, Fraternity, 2nd edition (1874), page numbers from Chicago Univer-
sity Press edition, Richard Posner, ed.(1992).
9
The argument, put simply, will be that: (i) laissez faire works well in economic interactions,
with certain exceptions, and regulation is apt to be misused by the government, (ii) in social
interactions, the exceptions dominate, the case for laissez faire is much less compelling, and (iii)
government ocials face less temptation to use social regulation contrary to the public good, but
since it is dicult to predict the eects of social innovation, the best strategy is to maintain the
status quo.
2 Value Maximization
How should we decide whether a regulation is good, or bad? The first step is to choose
some valuation rule. Suppose, for example, that we are trying to decide whether a rule requiring
the arsenic level in drinking water to be less than 23 parts per billion is a good rule or not. A
strident environmentalist might say that the more stringent the rule, the better that a level of
23 is better than 30, but 4 would be an even better rule. Someone else might say that cost should
be considered too, and that reducing the level to 4 parts per billion would cost more than the
entire budget of the city government, requiring taxes to double.
The standard valuation rule used by economists is what I shall call value maximization,
but which is also variously called cost-benefit analysis, eciency, and wealth maximization.
The idea is simple. Add up how much each person who likes the regulation would pay to have it,
and subtract out how much each person who dislikes the regulation would require to be paid to
accept it. If the resulting number is positive, adopt the regulation.
A concrete example will illustrate this. Suppose Anderson and Brown want a stricter arsenic
regulation and would pay up to $30 and $70 to get it, whereas Corman and Daniels dont want
it, and would require payments of at least $20 and $10 to feel that the new regulation had not
hurt them. Since supporters would pay up to $100, and opponents would accept as little as $60,
adopting the regulation does maximize value.
This is not at all controversial if the payments actually take place. If we adopt the regulation
and make Anderson and Brown each pay $25 to Corman and Daniels, everybody is happy that
the deal went through. We call this a Pareto improvement, after the economist Pareto who came
up with the criterion that if everybody is better o, a policy is good.
What is more controversial is what whether we should say that the regulation is desirable
even if the new policy does not include payments to Corman and Daniels. The regulation still
maximizes value, but Corman and Daniels would oppose it. The standard position of economists
is that the regulation is nonetheless desirable, because the winners win more than the losers lose.
Absent other considerations, this surely makes sense. The alternative is to make Anderson and
Brown unhappy and more unhappy than Corman and Daniels would have been by rejecting the
regulation.
10
2.1 A Single Market Transaction
Let us now apply the idea of value maximization to a market transaction. Smith approaches
Jones and asks if Jones will sell a bottle of whisky for $10. Jones agrees, and the whisky changes
hands. Is the transfer of the bottle from Jones to Smith a good thing? Value maximization says
that it is. Since Smith oered a price of $10, we know that his willingness to pay was at least
that high, and probably higher maybe $15. Since Jones accepted the price of $10, we know that
his value for the bottle was no more than that maybe it was $8. Using the figures of $15 and
$8, the net benefit from Jones giving the bottle to Smith is $7, an increase in value. It may be
that the true gain in value is more than $7 or less, but since both parties agreed to the trade, we
know that Joness value must be less than Smiths.
I will be calling this valuation rule value maximization, but we can use this example to
illustrate why the other terms are used for it. Suppose the values of $15 and $8 are correct, and
moving the bottle from Jones to Smith at a price of $10 has a benefit of $5 for Smith and $2 for
Jones. The eect on their satisfaction is then the same as if the trade were blocked, but by a
miracle $5 suddenly appeared in Smiths pocket, and $2 in Joness.11 This is why some people
call the idea wealth maximization: a value-maximizing trade increases the dollar amount at
which people value their possessions. It is also why some people call this an ecient allocation
of goods: by moving the bottle from the hands of Jones to those of Smith, it is as if the economy
had found a technology that increase the amount of output by $7.
It may seem obvious that it is good for Jones to sell the bottle of whisky to Smith. But value
maximization has an implication which is more troubling. Suppose Smith simply stole the bottle
from Jones. Value maximization says that this, too, is a good thing. The eect on total value is
exactly the same as the sale at the price of $10. The sale benefited Smith by $5 and Jones by
$2, a total of $7. The theft benefited Smith by $15 and hurt Jones by $8, which also makes for a
total benefit of $7. Value maximization treats these the same. All that matters is that the bottle
has moved from someone who values it less to someone who values it more.
This is an example of the power of the idea of value maximization, but also of its moral
neutrality. Economists do not take a stand on morality. To do so would not be controversial in
the case of theft, perhaps, but it would be in the case of most government policies. Is it moral to
tax rich people at a much higher rate than poor people? Is it moral to make consumers pay more
for sugar to benefit sugar producers? Is it moral to forbid racial discrimination or to require it, as
in the case of armative action or old-fashioned segregation? Those are important questions, but
the economist evades them. This evasion, moreover, is entirely reasonable. It is hard enough to
determine whether a policy maximizes value or not. We therefore separate that question from the
question of whether a policy is moral, which usually requires much dierent reasoning to answer.
11
I am ignoring wealth eects here; actually, adding $5 to Smiths wealth might have a minutely dierent
eect than giving him $5 in satisfaction from a bottle of whisky. True?xxx
11
In the case of theft, however, value maximization does provide a reason for why the action is
bad. In the particular case of Smith and Jones, value maximization says that the theft is good. It
is good, however, only because we started with a story in which Smith was willing to pay at least
$10 and Jones was willing to accept as little as $10. This information is crucial to whether moving
the bottle from Jones to Smith maximizes value. If, instead, we announced that we were going to
give the bottle to whoever valued it more, and asked each person for their values, imagine what
would happen. Smith might say he was willing to pay his entire wealth for it, and Jones might
say that he, too, valued that bottle more than anything else in the world. They would lie.
In actual practice, the idea of value maximization crucially requires us to know the value of
each person aected. The wonderful thing about market transactions is that market prices force
people to reveal something about their true values. Smith puts his money where his mouth is
when he oers $10. Jones reveals something about his value too, when he accepts $10. We do
not learn the exact values, but we know there is a net gain in social value.
After a theft, we do not know that value has increased. We do learn something that Smith
was willing to go to the trouble of stealing the bottle, and Jones was not willing to go to the
trouble of guarding it eectively but that is not enough to guarantee value maximization. And
in any case, Smiths stressful thieving and Joness worry and precautions are a social waste. If
Smith would have paid $4 to have gotten the bottle legally, and Jones invested $2 of his time in
trying to protect it, those $6 are a social waste, because transferring the bottle by open purchase
would have avoided them. Thus, theft, while it may be good in particular cases, is bad generally,
and it maximizes value to make it illegal.
I said that the idea of value maximization was powerful. One illustration is that we have
just used it to derive a reason why theft is bad, rather than having to accept the evil of theft
as an independent moral rule. If we command, Thou shalt value maximize, we can dispense
with Thou shalt not steal, Thou shalt not kill, and Thou shalt not commit adultery, which
become mere corollaries. Indeed, this is something like the rule of Jesus Christ (and Rabbi Hillel):
Thou shalt treat thy neighbor as thyself, a rule not unlike value maximization in its unbiased
treatment of everyone in society.
Another illustration of the power of value maximization is in how little information it requires.
Return to Smith and Jones, and suppose that Smith already owns 900 bottles of whisky, whereas
Jones only owns the one bottle for which Smith oers $10. How does that aect our opinion as
to whether the sale of the bottle is good or bad?
Presented with these facts, some people might say that the sale was bad. Smith, after all,
has plenty of whisky already. He does not need another bottle. Jones will be left whiskyless, and
we ought not to allow that to happen to him, poor fellow. Under this view, though, we really need
more information. If, in addition, we discovered that Jones had 2,000 bottles of gin, our decision
might reverse; Jones has plenty of liquor. If we then discovered that Smith was a millionaire, our
12
decision might reverse again; Smith can buy as many bottles as he wants, from other people. If
we then discovered that Jones only had one bottle of whisky because he had drunk the rest of
his stock and was too lazy to go and get more, our decision might reverse yet again; he is a lazy
pleasure-seeker, and does not deserve his remaining bottle.
Value maximization does not require any of that information. All it needs is that Smith
is willing to pay more than Jones for the bottle. It does not matter if Smith has more bottles
already he values that last bottle more than Jones. It does not matter if Jones has lots of gin
he does put a positive value on that whisky, and it should not be taken from him . It does not
matter if Smith is rich Jones still benefits from the transaction, and is happy to give up his lone
bottle for mere cash. It does not matter if Jones is lazy if we want to punish him for laziness,
do it with jail or a fine, not by preventing the innocent Smith from getting a bottle of whisky.
2.2 An Entire Market
The first step to understanding why free markets maximize value is to understand why the
transaction between Smith and Jones maximizes value. The second step is to look at how the
market price is chosen. Let us now look at the entire market for whisky, consisting of 300,000
potential buyers and 5,000 potential sellers, each of whom might sell 100 bottles. Buyers vary in
their willingness to pay from those who would pay at most $.01 per bottle to those who would
pay as much as $30. Sellers vary in their minimum acceptable price from as low as $4 to as high
as $20. The supply and demand diagrams in Figure 1 show this more precisely, as do the supply
and demand equations, P = 30 0.1Qd and P = 4 + 0.03Qs (with quantities of bottles measured
in thousands, as in the figure). The demand curve shows that there are 100,000 buyers willing to
pay at least $20 and 200,000 willing to pay at least $10.
(Let us assume that each buyer only wants one bottle.) The supply curve shows that there
are 1,000 sellers willing to take as little as $7 and 2,000 willing to take as little as $10. Since
each seller sells 100 bottles, this means that at the price of $10, the quantity supplied equals the
quantity demanded. This is the equilibrium price: the price generated by market forces.
13
Figure 1: Consumer and Producer Surplus
Why do market forces generate a price of $10? Think about what would happen if the price
were higher say, $20 per bottle. Sellers would be delighted to sell everything they had, but only
100,000 buyers would be willing to buy, so some sellers would end up unable to sell. Those buyers
would shave the price to $19.99, causing buyers to switch to them. That would leave other sellers
customerless, and those sellers would shave the price to $19.98. The price of $20 per bottle is thus
unstable, and the same reasoning shows that any price above $10.00 is unstable. At the price of
$10.00, however, each seller who is willing to sell find a buyer, and there is no incentive to cut
price further. A similar argument shows that any price below $10.00 is unstable. At any price
below $10.00, buyers are more eager to buy than sellers are to sell, and some buyers would be
unable to find a seller willing to sell. Those buyers would bid up the price, leaving other buyers
stranded, until the price was bid up to $10.00.
This argument shows that the free market equilibrium price is stable, but it says nothing
about whether it is optimal. It is, as it turns out, but to show that we need to think about the
costs and benefits to buyers and sellers. First, let us calculate them for the equilibrium price of
$10.00 and quantity of 200,000 bottles, bought and sold by the buyers and sellers at the left of
14
Figure 1, the buyers with the highest benefits and the sellers with the lowest values. You will
see immediately that whatever quantity is optimal, it ought to be bought by those high-valuing
buyers and sold by those low-valuing sellers. This is the result in the free market, but it is worth
mentioning because it might not be the result under government regulation, which might, for
example, result in the bottles going to the buyers who are most morally deserving or the best
connected politically.
Think about the benefit to the sellers who are selling those 200,000 bottles (some sellers are
inactive, selling nothing, so their benefit is zero). The gross benefit is their sales revenue, which
is simply (200,000 bottles) ($10/bottle) = $2,000,000. This is not their net benefit, because the
sellers did value those bottles, even if their values were not as high as the buyers. Their values
ranged from $4/bottle to $10/bottle, the height of the supply curve. Combined, their values
are the area labelled Seller Cost in Figure 1, since for typical sellers the value they place on
what they are selling is their acquisition or production cost (though the cost could be a dierent
opportunity cost that they cannot drink the whisky themselves!).
We can numerically calculate the size of the seller cost. Geometrically, it is the area of
the rectangle $4/bottle high and 200,000 bottles wide (which is $$800,000) plus the area of
the triangle with a height of ($10/bottle - $4/bottle) and a width of 200,000 bottles, which is
(1/2)($6/bottle)(200,000 bottles) = $600, 000. That sums to a seller cost of $1,400,000.
Since the sellers net benefit is their gross benefit (revenue) of $2,000,000 minus their lost
value (cost) of $1,400,000, their net benefit is $600,000. This is the area labelled producer
surplus in Figure 1, which is the standard name economists use for net seller benefit.12
Now think about the buyers. The gross benefit the active buyers get from the 200,000 bottles
is the sum of the values for each of the buyers. Some buyers have a value of $30, some of $29,
some of $28, and so forth down to the last active buyer, whose value is only $10. (There exist
other buyers who are inactive, but they will not be getting any benefit, so we can ignore them.)
The sum of the values is the area under the demand curve up to 200,000 bottles. This equals
the area of the rectangle $10/bottle high and 200,000 bottles wide, which is $2,000,000, plus the
area of the triangle above it with height ($30/bottle - $10/bottle) and width 200,000 bottles,
which is (1/2) ($20/bottle) (200,000 bottles)= $2,000,000. Adding up the two areas (which just
coincidentally have the same size) gives us the gross benefit of the buyers, their aggregate value
for the bottles, which is $4,000,000.
The net value for the buyers is less than the gross value, because they have to pay the sellers
$10/bottle. This is a payment of $2,000,000 for all 200,000 bottles, so the net value is $4,000,000
12
Readers who have studied economics have probably learned the concept of producer surplus a dierent
way, calculating the area of the producer surplus directly rather than as the revenue rectangle minus the
cost trapezoid. I use the slower method because soon we will look at atypical cases where the producer
surplus is not a simple triangle.
15
- $2,000,000= $2,000,000. In Figure 1, this is the area labelled consumer surplus.
Adding together the producer surplus and the consumer surplus gives us the total surplus,
the total value created by the existence of this market. When the quantity is 200,000 bottles and
the price is $10/bottle, the total surplus is thus $600,000 + $2,000,000=$2, 600,000.
Having calculated the value created by the free market, we must now show that this is
more than any government regulation could create. The first step is to understand a remarkable
fact: that it is the quantity of 200,000 bottles that determines the total surplus, not the price of
$10/bottle. To see this, suppose that we keep the quantity at 200,000, being bought by the same
buyers and sold by the same sellers as in the free market, but raise the price to $20/bottle. This
must be backed up by government force, as a two-part regulation. The first part is those 200,000
consumers must be forced to buy on pain of prison, something not all of them would do at such
a high price. The second part is that sellers must be forbidden to reduce their price, on pain of
prison, since otherwise they would shade their price to try to acquire more customers.
Having imposed the regulation, let us calculate the surpluses again. This will be easier than
before, because the the gross buyer benefit and the seller cost have not changed from their free
market levels! Since the same people are buying and selling the same 200,000 bottles, the buyers
still value the bottles at $4,000,000 and the sellers still value them at $1,400,000. All that has
changed is that the buyers now pay a much higher price a total amount of ($20/bottle) (200,000
bottles) = $4,000,000 and the sellers get that higher revenue. Thus, now the consumer surplus is
($4,000,000- $4,000,000) = $0, and the producer surlpus is ($4,000,000- $1,400,000)= $2, 600,000.
The total surplus is unchanged from its free market level of $2,600,000; all that has happened is
that now the sellers get all of it and the buyers get none of it.
Whatever price is chosen under this two-part regulation, the total surplus will stay the same.
When the quantity is fixed, the price is just a transfer from buyer to seller. The total surplus is
(Gross Buyer Benef it P rice Quantity) + (P rice Quantity Seller Cost).
The P rice Quantity terms cancel each other, so the total surplus is (Gross Buyer Benefit - Seller
Cost), which does not depend on the price.
The total surplus does depend on the quantity, however, which we were keeping fixed at
200,000 bottles. To see why this quantity maximizes value, consider increasing it. We will need
the most reluctant seller to become active, one whose value for a bottle is $10.00 and has already
sold some but not all of his 100 bottles, since sellers with lower values are already selling. We will
need a new buyer to become active too, one whose value is less than $10.00, since buyers with
higher values are already buying. Even if the new sellers value is $10.00 and the new buyers
value is $9.99, the highest possible, this new exchange reduces total value by $.01 rather than
increasing it. Increasing sales further would reduce total value by even more.
16
How about reducing the quantity below 200,000? If a buyer with a value of $10.01 or greater
stops buying from the most reluctant seller, with his value of $10.00, then total surplus drops by
at least $.01. Reducing the quantity below the free market equilibrium level loses some of the
gains from trade, from active sellers having lower values for the whisky than active buyers.
Thus, we see that the workings of the free market maximize value. First, the free market
arrives at the equilibrium price, without any government intervention necessary. Then, it turns
out that the equilibrium price elicits an equilibrium quantity which maximizes the sum of producer
and consumer surplus.
The fact that this is a two-step process is why the price matters more than it may have
seemed in my discussion earlier. Earlier, I showed that if the government required the quantity to
be at 200,000, with the same buyers and sellers as in the free market, then the government could
require any level it wanted to for the price without altering total surplus. Thus, it seemed that
this two-part regulation maximized value just as well as the free market could, even if it could not
do any better. But notice what I took for granted: that the government had detailed information
at its disposal and it could enforce its regulation costlessly.
How would the government know that the optimal quantity is 200,000? Supply and demand
curves are not written down in books that the government can consult. Economists measure
them with intricate statistical procedures, using market-generated data. Simply asking people
how much they would pay, partly because they do not think hard enough about it if they do not
really have to pay, and partly because they might not tell the truth. What would happen if, for
example, the government said it was going to set the price of a bottle of whisky to one penny per
bottle, and asked buyers to step forward if they were one of the 200,000 buyers with the highest
values? Moral scruples aside, all 300,000 of the consumers would step forward, since all of them
would like the chance to buy whisky at that price. If the government furthermore asked which
2,000 sellers had the lowest costs, no seller would step forward none of them would want to be
forced to sell at such a low price.
The free market, on the other hand, needs very little information. The process described
earlier moves the price to $10.00 without any need for people to tell the truth. The reason is that
in an actual market, buyers and sellers put their money where their mouth is. A buyer has no
reason to claim that he would only pay $5.00 for a bottle if his true value is $13.00 and the result
of his claim is that he loses the chance to buy at $10.00. A seller has no reason to claim that his
minimum acceptable price is $11.00 if it really is $9.00 and his lie will lose him the sale. This
economizing on information is a huge advantage of the marketplace, even more important than
the fact that it does not need to pay police to enforce its prices and quantities.
The logic of this is similar to the logic of why the single transaction between Smith and Jones
maximized value. Indeed, we can think of Smith and Jones as being just two of the thousands
of participants in the market. What is dierent in the case of the market is that anonymous
17
market forces determine that the price will be $10, whereas in the single transaction example I
said that Smith oered Jones a price of $10 without explaining where that price came from. But
in both the single transaction and the market, the essential idea is that if both buyer and seller
voluntarily agree to a transaction, it (a) benefits both of them, and (b) increases total value.
Thus, in ordinary economic transactions, the free market maximizes value without the need
for government intervention. That is why economists are generally against government regulation.
It is an important idea to understand, and much of an introductory economics class is devoted
to trying to explain it. But economists also recognize that there are situations in which some
premise underlying this reasoning fails, so that government regulation could help. These are called
situations of market failure, and will be our next topic.
2.3 Product Quality
Not all government regulation is of prices and quantities. As much or more concerns other
characteristics of a market product quality, safety, contract terms, and suchlike. Here, too, the
free market has its virtues, especially in a situation of limited information.
Take as a simple example the market for childrens carseats. Suppose carseats can be made
of varying strengths, ranging from carseats that will protect only 50% of children from serious
injury in a crash at 40 m.p.h., little better than no carseat at all, to carseats that will protect
99% of them. Which kind of carseat would you buy?
The answer depends on the price. If the cost of producing carseats ranges from $20 for a
50% safety rating to $40 for 70%, $80 for 80%, $160 for 90%, $320 for 98%, and $900 for 99%, as
shown by the total cost curve in Table 3 and Figure 2, then you probably would not choose the
safest carseat. You have a total benefit curve for your personal tradeo between cheapness and
quality that shows how much you would pay for a given quality. The total benefit curve in Figure
2 says that the consumer would pay
$100 for a 50% safety rating, $600 for 70%, $800 for 80%, $900 for 90%, $950 for 98%, and
$953 for 99%.
18
Figure 2: Costs and Benefits of Childseats
If the consumer were able to buy any of these carseats at cost, which one would he buy?
Notice that he is willing to buy any of them, because his benefit from any one of them exceeds
its cost. If he does have a choice, however, he will choose the carseat rated at 90%. His net
benefit his consumer surplus would be $80 for a 50% safety rating, $560 for 70%, $720 for 80%,
$740 for 90%, $630 for 98%, and $53 for 99%, as shown in Table 3. The consumer will not pick
the carseat he values highest, the one rated at 98% with the value of $953. Rather, he will pick
the carseat that gives him the best value for the money. Moreover, his choice maximizes value
according to our criterion, because the transaction adds $740 in value to society, the consumers
$740 in consumer surplus plus the sellers $0 (since he is selling at cost) of producer surplus.
19
Table 3: COSTS AND BENEFITS OF CHILDSEATS IN A COMPETITIVE MARKET
Safety Rating Cost Benefit Price Consumer Surplus Producer Surplus Value Created
(= Cost) (= Benefit-Price) (= Price- Cost) (= CS + PS)
50% $20 $100 $20 $80 $0 $80

70% $40 $600 $40 $560 $0 $560
80% $80 $800 $80 $720 $0 $720
90% $160 $900 $160 $740 $0 $740
98% $320 $950 $320 $630 $0 $630
99% $900 $953 $900 $53 $0 $53
By the way, this is a good example of the unreliability of asking consumers about how much
they would pay for something or even yourself. Despite all the jokes made about it, shopping
truly can be a tiring activity, and a big reason is that the shopper actually thinks very hard
about the tradeo between buying good X or good Y or buying neither and saving the money
for another day. If the shopping is for a childseat, and the tradeo is between the childs safety
and saving money, the shopper bears the additional mental strain of having to admit to himself
that a little extra safety is not worth doubling the price. The baby is cute, but its safety is not
really priceless. If the situation is not real shopping, and is just telling some stranger what kind
of childseat you would buy, the embarassment of saying that you would pick a cheap one rises
even further. The mental strain and embarassment can all be avoided, though, by quickly saying
that you would of course buy the $900 carseat.
Returning to the main thread of argument, we have seen that the value-maximizing level of
safety is 90%. What level would be sold in the free market?
The free market would provide exactly the right level of safety. We can see this by an
argument similar to the one for why the market provides the right price, and thus the right
quantity. Suppose the market initially had all the sellers selling carseats rated at 50% at a price
of $90. That price would not be stable, because a seller who cut his price to $89 would have
almost the same profit margin, but would attract all the customers, vastly increasing his profits.
Other sellers would undercut him, and the price would be pushed down to the cost, $20. Producer
surplus would be driven down to $0 by competition, and consumer surplus would rise to $80.
$20 would be the equilibrium price if the only possible childseat were one rated at 50%.
That, however, is not the case in our example. One of the sellers would innovate by introducing a
higher quality, higher price childseat. Since the buyers are getting $80 in consumer surplus from
the childseat rated at 50%, he would have to give them just as good a deal from his innovation.
He can do that by oering a childseat rated at 90% for $500, which would yield $400 in consumer
20
surplus ($900-$500) and $340 in producer surplus ($500-$160). That deal would outcompete the
cheap low-quality childseat. Other sellers would imitate him, though, and in equilibrium they will
all oer the childseat rated at 90%, at a price of $160. This is a stable outcome, because no seller
could change his price or quantity and increase his producer surplus.
This argument does depend crucially on competition among sellers, and one might wonder
whether consumers in an uncompetitive market, with just a single monopoly seller of carseats,
would have to pay high prices for low quality. We will address that in more detail later, but the
bottom line is that although usually monopolies will charge prices too high to maximize value,
there is no reason to expect them to choose low quality instead of high quality. In the childseat
example, in fact, a monopolist would maximize value even in his choice of price.
Table 4 illustrate what happens. Now that we have a monopoly seller, he is free to choose
the price and safety to maximize his producer surplus without any threat from competitors un-
dercutting his price or introducing new products. The lowest quality possible is the childseat
rated at 50%, and the monopolist would sell that for $100, the maximum the consumers would
pay, generating a hefty $80 in producer surplus for him. But he can do better. If, instead, he
chose the value-maximizing safety level of 90%, he could raise his price to $900. Since his cost
would only rise to $160, his producer surplus would go up to $740, a clear gain. The monopolists
product will thus be just as good as the competitive markets.
The logic is simple. Since the monopolist is able to grab all the consumer benefit by charging
a price equal to that benefit, he has an incentive to make that benefit bigger. He will not choose
quality to be at the maximimum possible level, since he does have to pay more costs to producer
higher quality, but he will increase the quality so long as the extra quality is worth the extra cost
exactly the calculation that maximizes value.
21
Table 4: COSTS AND BENEFITS OF CHILDSEATS IN AN UNCOMPETITIVE MARKET
Safety Rating Cost Benefit Price Consumer Surplus Producer Surplus Value Created
(= Cost) (= Benefit-Price) (= Price- Cost) (= CS + PS)
50% $20 $100 $400 $0 $80 $80

70% $40 $600 $600 $0 $560 $560
80% $80 $800 $80 $0 $720 $720
90% $160 $0 $160 $0 $740 $740
98% $320 $950 $320 $0 $630 $630
99% $900 $953 $900 $0 $53 $53
Government regulation of safety is therefore unnecessary in this example (though we will

later be examining some of the assumptions underlying it). In fact government regulation might
fall prey to the information problem I mentioned above, that people who are not seriously buying
a childseat would not provide accurate information about their valuations. If a state legislator
must vote publicly on whether he thinks children should be protected at the 99% level instead of
the 90% level, what will he do? Like the consumer, he may shut his eyes and sincerely choose 99%
to avoid admitting to himself that he trades o cheapness against child safety. Even if he knows
what maximizes value, though, he may still want to avoid showing in a publicly recorded vote
that he puts money ahead of children, especially if he hopes that the bill will fail even if he votes
for it. And he is right to fear that public vote, because the voters form their publicly announced
political positions in the same way as they answer surveys about how much they would pay for
new products without much thought, and knowing that whatever words they speak, it wont
take money out of their pockets. Thus, getting to the optimal quality by regulation is typically
more dicult than getting there by the free market.
2.3 Innovation
There is a common perception that regulation hurts innovation. This needs some analy-
sis, though, because we must answer why regulation would hurt innovation more than it hurts
established industries, and why, indeed, it should aect innovation at all. If a country imposes
onerous regulations that raise the cost of doing business, it is clear that this will reduce the level
of production in that country. If the government simply imposed a tax of 10% on all economic
activity, we would expect economic activity to decline. People would substitute, increasing the
the amount of their time spent on noneconomic activities, which are untaxed, instead of on labor
22
to generate taxable income. People would save and invest less, too, since the production in which
they invest would be subject to the tax.13 The eect on investment is secondary, though it is
not that investment is taxed, only that since production is taxed, activities such as investment
that are complements to production become less attractive. Nonetheless, investment would fall,
and so would economic output and growth of output.
Regulation is typically dierent from a tax of 10% of revenue, however. It creates two kinds
of costs: a one-time fixed cost, and a variable cost that must be paid each year and rises with
output. If the government requires that each factory submit an annual report listing the machinery
it uses and possible hazards to workers, the variable cost is the cost of measuring the amount of
machinery and filling out the form, a cost that must be borne each year and that rises with the
amount of machinery used. But there is also a one- time fixed cost: each factory must learn what
the regulation requires of it, where to obtain the forms, and how to figure out the hazards from
each type of machinery used.
These two costs have dierent impacts. The variable cost is one that will depress total
surplus each year after the regulation is imposed. The fixed cost is a one-time cost that will have
its biggest impact in the year the regulation is imposed. After that, factories that use old types of
machinery will not have to incur the cost again there will just be a momentary decline in surplus
from that source as far as they are concerned. New factories, however, or old factories that use
new kinds of machinery, still have to pay the fixed cost.
Joseph Schumpeter defined innovation as a combining of factors in new ways, as opposed to

simply an increase in the amount in capital, labor, and other inputs in old combinations. This can
be done in a variety of ways. What happens with all of them is that more value can be created
without any increase in the amount of resources. This is not the only source of economic growth,
or even the most important one. There are also increases in labor because of population growth or
increased working hours from the same size population, and increase in capital because of saving
and investment, but neither of those increase output without increasing the amount of inputs.
Moreover, much, perhaps most of the growth from increases in inputs is also innovation, because
the inputs are combined in new ways. A new worker enters the workforce and is employed on a
new software project, which is financed by bonds that increase the total amount of capital in the
economy. That is as opposed to an existing factory hiring the new worker and floating bonds to
add a duplicate of its existing building and machinery.
13
I am ignoring special cases here, which arise in theoretical models but are implausible in the real world.
For example, in theory a higher tax rate could induce people to spend more time at work, not less, because
they would want to restore their post-tax income to its old level and need higher pre-tax income to do
that. This could happen, at, say, a 99% tax rate, since somebody who did not move to a 14-hour work day
would starve to death on the 1% of an 8-hour days income left to him after that high a tax. The Laer
Curve fails at such high tax rates.
23
Schumpeter says this better than I can. In Chapter 2, Section II of his 1912 book, The
Theory of Economic Development, he says:
In so far as the new combination may in time grow out of the old by continuous
adjustment in small steps, there is certainly change, possibly growth, but neither a
new phenomenon nor development in our sense. In so far as this is not the case, and
the new combinations appear discontinuously, then the phenomenon characterising
development emerges. For reasons of expository convenience, henceforth, we shall
only mean the latter case when we speak of new combinations of productive means.
Development in our sense is then defined by the carrying at of new combinations.
This concept covers the following five cases: (i) The introduction of a new good
that is one with which consumers are not yet familiar or of a new quality of a
good. (2) The introduction of a new method of production, that is one not yet tested
by experience in the branch of manufacture concerned, which need by no means
be founded upon a discovery scientifically new, and can also exist in a new way of
handling a commodity commercially. (3) The opening of a new market, that is a
market into which the particular branch of manufacture of the country in question
has not previously entered, whether or not this market has existed before. (4) The
conquest of a new source of supply of raw materials or half-manufactured goods, again
irrespective of whether this source already exists or whether it has first to be created.
(5) The carrying out of the new organisation of any industry, like the creation of
a monopoly position (for example through trustification) or the breaking up of a
monopoly.
Notice that the new combination of inputs is not restricted to what we normally think
of as innovation new products, or new processes for producing old products. It also includes
introducing old products to new markets, new sources of supply, and new organizatonal forms.
All of these are ways to get more value out of the same old quantity of inputs.
Schumpeters concept of innovation (development in his terminology) is appropriate for

looking at the eect of regulation on growth, because it is the new combination of inputs that must
rethink how to satisfy government regulations, especially if it is done by a new firm, but even if it
is just an old firm doing things dierently. Bureaucratic procedures are inherently conservative;
the bureaucracy, no more than anyone else, wants to think about how to deal with new situations
unless they are paid for it. And unlike the private entrepreneur, the bureaucrat does not gain
wealth by encouraging innovation, unless it is by accepting bribes.14
Thus, new combinations of inputs are more aected than old combinations, because they
14
See Hernando de Soto . Shleifer, A. S. Djankov, R. La Porta, and F. Lopez-de-Silanes (2002), The
Regulation of Entry,Quarterly Journal of Economics.
24
face a one-time fixed cost that the old combinations have already paid, a fixed cost which amounts
to a tax on innovation. This fixed cost is all the more important, however, for two additional
reasons: the marginal profitability and the small size of the average innovation.
The average innovation expects, adjusting for its riskiness, to be barely more profitable than
the least profitable existing stable business, which is just covering its cost of capital. Some existing
firms are highly profitable, earning much more than their cost of capital. They, of course, will
continue in business. Indeed, since existing firms have already sunk many of their capital costs,
they will continue to operate even if they face an unforeseen regulatory burden. A few existing
firms are marginal, however, and will go out of business because of the new cost. We should
expect more innovations, however, to be of marginal profitability, ex ante. If an innovation were
to be exceptionally profitable now, it would have been undertaken already. We think of innovation
as being highly profitable, but that is only because we think only about successful innovations.
For every successful innovation, there are many unsuccessful ones, and it is hard to know which
is which in advance. But this means that a small increase in costs will have a disproportionate
eect on innovations. It will shift the balance for many of them from bare ex ante profitability
to a negative value. New factories are only marginally profitable projects. Otherwise, they would
already have been built. And so even a small extra cost will often kill the project.
The second problem is that innovations tend to be smaller than existing businesses. They
are new and risky, and that means it makes sense to start them small and expand their scale
only if they are successful. Also, it is hard to evaluate their profitability, especially for someone
outside the industry, and this means entrepreneurs have more diculty in obtaining capital than
well- established firms. Banks and stock owners prefer known risks. Thus, the entrepreneur will
start at a smaller scale.
If a firm is smaller, though, a fixed cost cannot be spread across so many dollars of sales
revenue. A million-dollar firm feels a fifty thousand dollar regulatory cost much more than a
hundred-million- dollar firm would. This means that the fixed cost of regulation will hit innovation
harder than it does existing production. Thus, regulation hurts innovation more than it hurts
existing production. It hurts both new small businesses, and new large ones.
I would like to discuss one fixed cost of regulation, a less tangible one, in more detail. This
is the the problem of regulatory risk. A major cost of regulation, and especially of regulation
that changes over time, is learning the rules. If you are operating a business in world without
regulation, and you know that it is without regulation, you can devote your energy to everyday
operations and you can plan without fear of running into some unknown government constraint.
If, however, the government regulates, and you know this but you do not know exactly how it
regulates suddenly you face a risk which may be much greater than the regulation itself. It is
like walking across a minefield. Almost every step you take in a minefield is safe. The mines are
scattered, and cover only a small fraction of the square footage. If you knew where each mine
25
was, you would have only a few extra steps to take to cross safely. But if you do not know where
they are, the fact that most steps are safe is little comfort. You know that sooner or later you
almost certainly will step on a mine.
Unknown regulation is like that. The business may know that most of its activities are legal
but which of them are not? And what will happen when it breaks a regulation? The trouble
spent dealing with potential regulations that turn out not to exist may be far greater than the
trouble spent dealing with the regulations that actually exist.15
My own university, with the aid of the Federal Government, provides a humorous example.
At various times in history, scholars have peformed experiments that endangered or hurt human
subjects. At worst, they tried out dangerous new medical treatments or withheld useful existing
ones to see what would happen. Less culpably, psychologists did experiments that tricked the
subjects or made them anxious, such as the famous Milgram experiments in which the subjects
were asked to administer dangerous levels of electric shock to other people or so they thought,
since actually the shocks were fake. The government response was regulation requiring universities
to check all experiments and only approve good ones.
Here is how Indiana University has responded:
1. If I am just talking with people about....Im not doing anything to themthere are
no experiments, no clinical trials, do I need human subjects approval?
Yes (and we are not kidding). Federal regulations define human subjects research
broadly to cover interactions as well as interventions with human subjects for research
purposes. So. . . surveys, interviews, questionnaires and oral history interviews,
etc. are all covered by the federal regulations. And, yes, you need prior committee
approval. Most of this type of research, however, qualifies as EXEMPT.
2. If my research qualifies as exempt under the federal regulations, must I submit

an application for approval?
Yes. The term exempt in terms of the review process really means exempt from
full committee review. It is the policy of Indiana University to review all research
in order to ensure that the research is, in fact, exempt. The application for exempt
research is less extensive, and under most, but not all, circumstances, written, signed
informed consent is not required. We do, as a general matter, require investigators
15
This is like the joke about the man who figured out a way to stop the thief who was stealing watermelons
from his garden. He put a sign out, saying, Thief: One of the watermelons in this garden is poisoned.
This, of course, made it it unprofitable for the thief to steal, even though almost all the watermelons were
perfectly harmless. (The punchline though, is what happened the next morning. The man looked out, and
found all his watermelons still there, untouched. He was happy till he saw his sign. The One had been
scratched out and replaced with Two.
26
give to their subjects a written statement containing information about the study
and their part in it.
3. If I am using data complied by other third parties, e.g. governmental agency or

another researcher, do I need approval?
Yes. Use of existing data is exempt research but still requires prior approval. Even
if you have worked with the original investigator in obtaining the data, your indepen-
dent use of the data requires approval. This issue comes up often with Ph.D. disser-
tation research. All Ph.D. candidates must get their own human subjects approval
for their research even if it involves working with data collected by a collaborator
with his or her own human subjects approval.16
Thus, Indiana University requires researchers to submit applications for approval to the
human subject research committee even if the research is exempt from the federal regulation,
so the university can decide if it is exempt. This is a substantial burden, since the University
requires a detailed description of the project, which must not begin before getting approval,
and new approval must be gotten if the research plan changes which research plans always do.
Moreover, the University requires approval even if the research never involves interaction with a
human subject, and merely uses data collected years before by some other researcher.
The apparent reason for this is that the University is afraid that even research that seems
to be exempt from the federal regulation might not be that the federal government is entirely
unreasonable and will cut o federal grant support to Indiana University. This seems unlikely,
but the potential cost is so great that the organization has responded to a relatively mild federal
regulation with much greater internal compliance procedures.
In private business, too, fear of unknown regulations is an important motivation in an atmo-

sphere in which firms know that numerous regulations do exist but do not know them exactly
or in which regulations are so numerous that nobody knows all of them. Such may reasonably
prevent someone from innovating at all, knowing that somewhere along the way, a regulatory
roadblock is likely to kill his project, or at least make the dierence between profit and loss.
Finally, a last problem that regulation can create for innovation is by directly freezing current
production methods in place. This is not a feature of ideal regulation, but it is a common feature
of regulation in practice. One way this can happen is if regulation prevents entry of new firms.
In the America of 1960, for example, it was dicult to start a new bank, or even a new branch
of an old bank. Naturally, this makes innovation more dicult, since innovation would have to
be carried out by existing firms. A second way it can happen is by prescriptive regulation:
16
FREQUENTLY ASKED QUESTIONS About the Human Subjects Approval Process, Blooming-
ton Campus Committee for the Protection of Human Subjects 5/21/2004, http://www.indiana.edu/
resrisk/faq.html (viewed 8 January 2005).
27
regulation that prescribes what technology is to be used to solve some problem. A standard ex-
ample is the requirement that coal-burning power plants use scrubbers on their smokestacks to
remove sulphur. This certainly reduced pollution, but it froze the technology in place. Another
technology that existed at the time was simply to use low-sulphur coal from Wyoming instead
of the cheaper high-sulphur coal from West Virginia. Low-sulphur coal without scrubbers gen-
erated no more pollution than high-sulphur coal with scrubbers. But the prescriptive regulation
required scrubbers to be used regardless of the type of coal. Moreover, the regulation gave no
incentive to firms to come up with more eective scrubbers than currently existed, or to find other
technologies some new type of boiler, for example that might reduce sulphur emissions.17 Thus,
in a number of ways, government regulation of economic activity hurts innovation even more than
it raises the costs of operation using old techniques. The cost of regulation must be calculated to
include not just an increase in the cost of current methods, but what is much harder to measure
because it does not yet exist: the lost innovation and economic growth.
3 Market Failure and Economic Regulation
Markets usually work well. They do not always work well, however, even for maximizing
value. There are a number of separate justifications for economic regulation which we will look
at one by one.
Let us return to the single-transaction case as a running example. To summarize the case we
discussed earlier, Smith is willing to pay up to $15 for a bottle of whisky and Jones is willing to
accept as little as $8. Our conclusion earlier was that the government should allow the transaction
to take place, because it benefits both buyer and seller. The free market works without any need
for government intervention.18
This story can be challenged in a variety of ways. First, it may be that you do not care for
the goal of value maximization. That is fine, but we will return to that in a later section. Even
if you accept value maximization, however, things can go wrong in the story, generating what is
called market failure.
3.1 Enforcing Property and Contract Rights
A certain amount of government regulation is needed even to support free market transac-
tions. If the government has no rules forcibly constraining anyones actions, then Smith faces no
government penalties if he steals the bottle of whisky from Jones instead of paying for it. Laws
against theft are a form of regulation and a constrain on our liberty, though we usually take such
17
xxx Wildavsky book : Nuclear power. Scrubbers story too. Presciprtive regulatoin is a bad idea. Too
specific, hurts innovation.EcREp PRes 2003.
18
xxx Are transaction costs another reason? Coase Theory of the Firm. If an allocation is repeated, and
simple, command and control may be best.
28
laws for granted. But if Smith can steal the bottle at low cost, he will steal it even if his value is
less than Joness value and value will not be maximized. Moreover, Jones will use time, energy
and resources in trying to prevent theft; and Smith will use time, energy, and resources in trying
to overcome Joness precautions. Most of that investment is nonproductive from a social point of
view. It may, in the end, be important to making sure that the bottle goes to the highest valuer,
but a cheaper way to do that is to outlaw theft and require voluntary transactions.19
Put another way, it is value maximizing to have a government provide some protection of
property rights. This protection includes not just laws against theft and police to enforce them,
but laws defining property rights. Such laws are simple when it comes to bottles of whisky,
but they get more complicated when it comes to such things as ownership of corporations, wild
animals, stolen goods, and children. Often, the government goes a step further and provides for
clear markers of who owns what, as in the requirements that automobile ownership be registered
and land titles be recorded. These regulations make it much easier to buy cars and land, since
the buyer has more assurance that the seller really owns what is being sold.
Closely related to this role of government is governments role in enforcing contracts. Suppose
Jones would like for Smith to pay today for a bottle of whisky Jones will only be able to deliver
tomorrow (this might be because Jones needs the cash to get the whisky from his distributor).
Without a law against regulating breach of contract, Smith will be reluctant to hand over the
money, since Jones could just keep it and refuse to deliver the bottle. Some regulation must say
what happens if Jones refuses delivery. The law could be that Jones must refund the money, or
that he must in fact deliver the bottle, or that he must pay enough money to make Smith as
content as if the bottle were delivered. Scholars debate which of these rules maximizes value, but
all agree that any of them is better than no rule at all.
This, in fact, illustrates an important point about government role in property and contract
regulation: What matters most for value maximization is that there be clear rules about who
owns what, and that there be high enough penalties for broken promises. Getting the exact rules
right is much less important, because people can adapt to imperfect rules. But if nobody is quite
sure what the rules are, or who has the power to get what he wants, that is sure to hurt value.20
19
I should caution, though, that in some situations government precautions against theft are not the
value-maximizing policy, because it may be that Jones can protect himself more cheaply than the govern-
ment can. In practice, we use a mixture of personal precautions locks, alarms, and handguns and public
precautions police, courts, and prisons.
20
If the government provides clear rules, and is a strong and honest government, its overwhelming power
is behind whoever owns the property under the rules. If the government does not provide any rules, then
personal power is what matters. If personal power were clear as when one person could defeat anybody
else then lack of rules would not matter. But almost always it is unclear who would win in private battles
among coalitions of citizens if winning comes down to pure power.
29
3.2 Property Rights and Creation of Goods
I said in the previous section that the most important thing is to provide clear rules as to who
owns what, and the precise rules matter less. That is true, but mattering less does not mean
does not matter. Particularly important is that the property rules award enough ownership to
someone who creates something new.
This is most obvious if someone creates a new physical good. Suppose Jones has distilled the
whisky using his own labor and corn that he grew himself. It is natural to have a government rule
saying that Jones therefore owns the whisky, and has the right to transfer ownership to Smith.
Suppose, though, that the government had a rule that whatever Jones creates belongs to
Smith automatically, without any need for Smith to pay. That is avery clear rule, but not a
value-maximizing one. The problem is that Jones now lacks all incentive to create new whisky,
since only Smith will get any benefit. Even if we add another rule allowing Smith to whip Jones if
he so pleases, Joness incentives are still not right for producing whisky, even if the cost to Jones
is less than the benefit to Smith. The problem is an information one: it is hard for Smith to know
what Jones is capable of doing, since Jones has every incentive to claim that he is untalented and
weak, and that even the threat of whipping would not be enough for him to make whisky.
This is why slavery is not value maximizing. I have just described a situation in which Jones
is Smiths slave. We do not have to appeal to natural right to deduce that slavery is bad. Even
with our goal of value maximization, it has a problem: slavery does not give enough incentives to
create value. And, in fact, in time when slavery was legal, slaveowners found that even though
the law did not require them to give rewards to their slaves, carrots had to be used as well as
sticks if a slave were to be induced to do anything but the simplest tasks. Crude methods can
get people to put in the hours, but not to be careful or imaginative.
The government does not have to give Jones the right to 100% of the whisky he produces to
give him reasonable incentives, and in fact very few governments do. The usual rule is that Jones
has the right to keep most but not all of what he produces, giving some to the government. That
is the essence of an income tax.
Some kinds of creative activities are regulated in a dierent way. If someone comes up with
a new idea, rather than new physical object, the government faces a quandry. If the person has
complete and exclusive rights to his idea, he will overcharge others to use it the problem of
market power that we will discuss next. But if he has fewer rights to it, he has less incentive to
come up with new ideas.
The compromise response is for government to award a limited period of exclusive ownership
of the idea, in the form of copyrights or patents. The creator gets ownership for 20 years (for
patentable ideas), with the limitation that he must pay taxes on his profits, but after 20 years,
30
anybody can use his idea for free.
3.3 Market Power
The first two uses of government regulation I have discussed are easy to accept. We so take
it for granted that the person who has created something or paid someone else for it owns it
that we do not consider government rules against stealing it at all intrusive. These regulations
seem to be a foundation for the free market rather than an intervention in it. But we now come
to a somewhat dierent form of market failure, one where value maximization requires that the
government restrict someones right to freely decide whether to buy or sell his property.
Ordinarily, an exchange benefits both parties, resulting in both producer and consumer
surplus. The market transaction part of the whisky example showed that, because the price of
$10 per bottle resulted in the quantity being traded that maximized value.
In the individual transaction part of the whisky example, the price of $10 is between Smiths
value of $15 and Joness value of $8. The price could be anywhere between $8 and $15, and the
sale could still take place. But the price is not pinned down. It is the result of bargaining between
the two parties. Bargaining is strategic, and sometimes, especially when information is poor, it
reaches inecient results. If Smith were to believe that Joness value for the bottle is only $5,
for example, Smith would hold out for a price of no more than $5. No sale would take place, and
value would not be maximized, since Smith really does value the whisky more than Jones.
Monopolies are a particular example of the problem of poor information and market power.
If a company has a monopoly on a product, that does not by itself create market failure, but in
practice it always does. The problem is that the company does not know the exact valuation of
each consumer. If it did (and it could block resale) then it would set a dierent price for each
consumer exactly equal to that consumers valuation, and all the value-maximizing sales would
take place, as in Table 4 earlier. If, however, the company does not know which consumers have
high value and which have lower values, it will have to charge one price to everyone. This price
will be a compromise between the valuations of the most eager consumers and the least eager. As
a result, it will be higher than the valuation of some consumers, and they will not buy. Worse,
the price will be higher than the valuations of some consumers who would be willing to pay more
than the sellers cost. As a result, some value-maximizng trades will fail to occur.21
If one side of the transaction has a monopoly, it can capture more of the surplus, but usually
at the expense of diminishing the total surplus. Monopoly welfare losses arise from these inecient
attempts to capture surplus. The loss may arise either from the attempt to become a monopoly
(as in the expense of lobbying the government for a monopoly), from the attempt to exploit the
monopoly (as in the administrative costs of price discrimination or the familiar triangle losses
21
xxx A graph would help here.
31
discussed next).
Monopoly creates other problems too. One of them is that the profits of monopoly give
people an incentive to create monopolies. That is good if they are creating new goods, but bad
if they are just devoting eort to monopolizing existing goods. Thus, J.P. Morgan exerted his
considerable talents to creating monopolies by giant mergers of existing companies. U.S. Steel is
the biggest example, which was created by merging Andrew Carnegies price-cutting steel firm
with a number of other steel firms, with the result that after Carnegie left the scene, prices rose.
This was a profitable transaction for Morgan, but it reduced value rather than creating it, not
just because it eliminated some value- increasing steel transactions, but because it consumed the
attention of investment bankers who could have been doing something that created value instead.
A second problem with monopoly is that it seems to increase production costs. Firm that
are monopolies seem to have higher costs than firms that must compete for their existence. This
is not an obvious result. A monopoly, like a competitive firm, prefers high profits to low profits,
and so prefers low costs to high costs. We have seen earlier that a monopolist, like a competitive
firm, has a strong incentive to produce a high-quality product. Yet although the monopolys
desire for high profits may be just as high as the competitive firms its ability might be lower.
This is not thoroughly understood, but I can give one clear example: the problem of executive
eort. Shareholders of a competitive firm can compare the performance of its executives to the
performance of executives at other firms. A monopoly cannot do that. As a result, the competitive
firm can punish or reward its executives much more eectively than can a monopoly.22 The most
important kinds of regulation justified by monopoly are public utility regulation and anti-trust
laws. The technology of electricity distribution is such that it is best that one firm provide the
service, but important to prevent it from doing so at such a high price the people are discouraged
from using electricity. In other industries, competition would naturally arise, but anti-trust policy
is useful for preventing the competitors from making agreements not to compete.23
3.4 Imperfect Information
Poor information has already featured prominently as both a reason why the free market
is useful and as a reason for market failure. Indeed, economists have realized increasing over
the period from 1950 to the present that solving information problems is the key to a successful
22
xxx Here cite Joe Farrell.
23
A quite dierent monopoly-based reason for regulation is to create monopoly profits. When producers
compete with each other, they inflict negative pecuniary externalities on each other by reducing profits.
What producers lose, and more, consumers gain, which is why monopoly is ordinarily thought to be bad.
But if the government does not care about consumers, as might be the case if the producers were domestic
and the consumers foreign, it might want to create monopolies. Thus, it makes sense for the Japanese
government to encourage its automakers to organize voluntary export restraints, because that raises the
prices of Japanese cars in the United States and increases Japanese profits at the expense of U.S. consumers.
32
economy.
Our argument for the free market assumes that everyone in the economy is well- informed
about the value to everyone else of the goods being exchanged. Otherwise, ineciencies result
as the parties try to take advantage of their private information. The monopoly ineciencies
described above are one example; ineency arises if Smith misestimates how little Jones is willing
to accept.
Government regulation of advertising and fraud are justified by information problems. If

Jones claims he is selling whisky, but might actually be selling colored water, one of two problems
arises.
First, it may truly be colored water, in which case if Smith buys it, his value is not $15, but
$0, and value has not been maximized (it is true that Joness value might be $0 too, but they
have at least lost the cost of making the worthless transaction, and if Smith is thereby prevented
from making a genuinely value-increasing trade, there is a genuine value loss).
Second, it might be that Jones actually does have real whisky, even though there is no legal
penalty against selling colored water. If Smith knows the legal rule, though, he might refuse to
buy anyway. He does not know that the bottle is full of real whisky, and Joness promises lack
credibility. When there are no laws against fraud, honest merchants lose, as well as charlatans,
because consumers lack confidence in the market.
It is especially dicult to start a new business if reputation is the only basis for consumer
trust. In the absence of government regulation of fraudulent new products, innovation is stifled.
Or, it may be that the consumer does not know what he wants, exactly, and would like to
delegate this task to the government. Thus, the government requires technical safety features on
cars which it thinks almost all consumers would desire. The wide variety of problems arise from
imperfect information have been the subject of a vast literature since 1975, including much of my
own work.24 Most of these problems arise from the diculty of enforcing contracts: the payer
cannot costlessly force the performer to perform, whether that performance consists of product
quality, work eort, or provision of human talent. Many of these problems cannot be remedied by
government regulation, but some of them can, especially by regulations encouraging the truthful
provision of useful information.25
3.5 Externalities
24
See Eric Rasmusen Games and Information: An Introduction to Game Theory, 3rd edition,(1st edition,
1989), Blackwell Publishers, Oxford (2001), http://www.rasmusen.org/GI/index.html for references.
25
This kind of regulation is strewn with potential pitfalls for regulation, however. If, for example,
regulation requires extensive disclosure of unimportant information, as is perhaps the case with credit
agreements, the resulting information overload can actually leave the consumer more confused and apt to
buy from disreputable sellers than if the sellers had been allowed to disclose only useful information.
33
If someone takes action X which has an impact on someone else, but neither party can compel
an exchange of money, then it is said that X has a negative or positive externality, depending on
whether the impact is bad or good. Suppose that Smith, after buying whisky from Jones for $10
and drinking it, will throw the bottle onto the sidewalk in front of Browns house, where it will
shatter and cost Brown $20 to clean up. The transaction between Smith and Jones has indeed
created value of $7 as far as thos two are concerned Smiths value is $15 and Joness was only
$8. But that ignores Brown. External to the transaction is Brown, a third party, who suers a
value loss of $20. This more than wipes out the gain of $7.
The shattered whisky bottle is an example of a real externality: a spillover in which one
persons action aects the utility of someone else without any payment being made, and aects
the utility directly rather than just through the actions impact on prices.26
Pollution controls are an example of regulation based on externalities. When a tire factory
manufactures tires, the fumes created in the process reduce the utility of its neighbors. As a result,
the government commonly forbids factories to emit more than a certain amount of pollution.27
3.6 Coordination Problems

26
If the spillover results from the prices, it is called a pecuniary externality. If, for example, Jones has
been regularly selling whisky at $10/bottle to Smith, making a profit of $2 per bottle, and then Anderson
begins selling at a price of $7/bottle, Anderson has inflicted a negative pecuniary externality of $2/bottle
on Jones. This is only a pecuniary externality, however, because it arises through prices, not through
changes in the amount of goods that are ultimately consumed. Suppose Andersons cost is $6 per bottle.
Jones has indeed lost $2 per bottle, but Smith has gained $3, and Anderson has gained $1, so there is
no net gain or loss. A pecuniary externality is a spillover harm to someone that is exactly balanced by a
spillover gain to someone else.
Pecuniary externalities have been used as a justification for regulation, but not because they reduce eco-
nomic eciency. In a well- functioning marketplace, pecuniary externalities are inevitable and desirable.
But see Justice Brandeiss position in the text at note ?? infra for an example. On pecuniary externalities,
see R. Tresch (1981) Public Finance: A Normative Theory p. 91; J. Viner, Cost Curves and Supply
Curves, 3 Zeitschrift fur national-okonomie (1932), (reprinted in American Economic Association, Read-
ings in Price Theory, (1952) (the origin, so far as I know, of the term pecuniary externality);Allyn Young,
Pigous Wealth and Welfare, Quarterly Journal of Economics, 27:672-686 (August 1913). English law
early recognized that pecuniary externalities are not a social evil and do not create a cause of action. (The
opening of a new private school reduces the tuition that an old school is able to charge, but that does not
justify compensation, from a medieval case cited in Keeble v. Hickeringill, 103 Eng. Rep. 1127 (Queens
Bench, 1707).)
27
The perceptive reader will note that the externality justification for government regulation can be
reduced to the justification of setting property rights. The Coase Theorem tells us that what matters most
is that either the factory or the neighbors own the right to clean air, and that this right be alienable.
Ronald Coase, The Problem of Social Cost, Journal of Law and Economics, 3: 1 (1960). If the factory
owns it, it will sell the right to the neighbors; if the neighbors own it, they will keep it. The diculty is
that bargaining costs and information imperfections make it dicult to carry out trades in pollution rights.
34
The final type of market failure that I will mention is the coordination problem.
When expectations matter, there may exist a number of stable configurations of behavior,
each with its own set of expectations, and some of these equilibria may lead to better results than
others. Such multiple equilibria have been studied chiefly in macroeconomics.28 In the whisky
example, Jones will not expend the $8 to produce the whisky unless he expects Smith to buy
it. But Smith will not waste time visiting Jones unless he thinks Jones has whisky to sell. In
one equilibrium, the whisky is produced and traded; in a second equilibrium, with lower surplus,
Smith stays home and no whisky is produced. This has been suggested as a cause of business
cycles; nobody in the general economy will produce goods unless they expect other people to
produce goods for which to exchange them. One equilibrium has low production and welfare;
another has high production and welfare. Government jawboning might shift the economy from
one equilibrium to the other.29 In another example, nobody wants to be the last depositor
to withdraw their money in a bank run. In one equilibrium, nobody expects a bank run, so
nobody bothers to withdraw their money. In a second equilibrium, everybody expects a bank
run, so one occurs, and the banks fail. Government deposit insurance is intended to eliminate the
bad equilibrium although we have seen from the savings-and-loan mess that it introduces its
own problems.30 In each of the two examples, the government helps by changing expectations.
This may justify government macroeconomic intervention, and some forms of regulation such as
banking law, but it ordinarily does not apply to what we think of as regulation.31
The coordination function of government can be considered a background function, like

protecting property rights, rather than requiring active and continual intervention. Money solves
a coordination problem. People wish to trade with each other, but it is very inconvenient to
have to figure out that value of the goods a person produces in terms of the value of every other
good, and very inconvenient to carry around truckfuls of each thing produced for use in barter. I
28
xxx A dierent kind of multiple equilibria is the possibility that more than one set of prices might equate
supply and demand across the general equilibrium of the economy. This does not create any ineciency.
Also, microeconomists frequently find multiple equilibria in models of incomplete information such as
signalling models, but it is then dicult to know whether to attribute the market failure to information or
coordination problems. See Chapter 10 of Rasmusen (2001), and the references cited there.
29
See, for example, Peter Diamond(1982) Aggregate Demand Management in Search Equilibrium,
Journal of Political Economy, 90: 881-894 (October 1982).
30
Douglas Diamond & Philip Dybvig (1983) Bank Runs, Deposit Insurance, and Liquidity, Journal of
Political Economy, 91: 401-419 (June 1983).
31
A somewhat dierent multiple-equilibrium problem is created by network externalities: the exter-
nality that if two companies produce a product according to the same standard, sales of both can increase
because of the interchangeability. Thus, government may be helpful in setting a standard railway gauge
or a standard technology for high- definition television. On standards, see Michael Katz & Carl Shapiro
(1985) Network Externalities, Competition, and Compatibility, American Economic Review, 75: 424-40
(June 1985); Charles Kindleberger (1983) Standards as Public, Collective and Private Goods, Kyklos 36:
377-396 (1983).
35
teach students and write books; would I have to carry books and students to the grocery store to
exchange for pancake mix? Instead, the government provides money for use as a unit of account
and medium of exchange.
Less obviously, the government provides laws that help coordination. Henry Smith has
argued that land may only be sold with certain provisions so as to reduce the transaction costs
of land sales. Rather than checking the fine print on property deeds, the buyer can rest assured
that when he has bought land, he has bought the conventional package of rights.
In most economic transactions, market failure does not arise. Welfare losses are limited
because of the monetary character of economic transactions, because where there is imperfection,
there is profit. The making of the profit will ameliorate the imperfection, though at some real
cost. It may not matter, for example, whether consumers can themselves test the quality of
car bumpers, because either the competing sellers will themselves try to demonstrate quality,
to obtain competitive advantage, or businesses such as the many car magazines one can buy at
supermarkets will enter to provide information to consumers, at a small price. Similarly, the losses
from externalities are limited by bargaining costs. The problems create costs, but these costs are
limited by the cost of technological solutions.
4 Government Failure and Economic Regulation
Even when market failure is a problem, it does not follow that regulation is the proper
response, because one must also consider government failure, which arises from the unwillingness
or inability of the government to regulate eciently. When the government exerts force to restrict
behavior, it also redistributes wealth. This gives private parties an incentive to expend resources
to induce the government to shift the wealth to them, an activity known as rentseeking.32
Journal of Political Economy, 83:807-27 (1975). Other parties, who want to prevent the
redistribution, will also expend resources. The expenditure might be for bribing and counter-
bribing government ocials, or it might be for political campaigns. In either case, since wealth
is just redistributed, not created, and people use resources to eect the redistribution, societys
total wealth diminishes.
Even if the government is motivated by the public interest rather than the pressures of rent-
seekers, it is not necessarily intelligently motivated. Since the costs and benefits of government
actions flow to third parties rather than the government decisionmakers, there is little incentive
for the decisionmakers to expend eort to make good decisions. And to the extent that those who
32
See Gordon Tullock, The Welfare Costs of Taris, Monopolies, and Theft, Western Economic
Journal, 5:224-32 (1967); George Stigler The Economic Theory of Regulation, Bell Journal of Economics,
2 (1971); Richard Posner, Taxation by Regulation, 2 Bell Journal of Economics, 22-50 (1971); Richard
Posner, The Social Costs of Monopoly and Regulation,
36
are hurt or helped have the ability to influence the government decisionmakers, the rentseeking
problem is exacerbated. The government falls between the Scylla of interested rentseeking and
the Charybdis of disintererested incompetence.33
Thus, economic regulation is severely limited in its optimality for two reasons: the Invisible
Hand leads most markets to optimality, and even in the rare cases when government regulation
could help, the helpful regulation may not be what the government implements. We must now
see whether this is as true for social regulation.
I could say much more about government failure, but I will not, for the moment.34
5. Some Actual Regulations of Dubious Value
In this section let us apply these ideas to some actual economic regulations in the United
States and Europe. The theory I have outlined above is uncontroversial. By this, I mean that
they are generally accepted by the scholarly community of economists. I do no know the extent to
which the general public understands or agrees with them, and this would vary among countries.
The situation is a little like evolution versus creationism. Among biologists, the theory of evolution
is generally accepted. Fine points of the theory are still unsettled, and application to particular
species and animal features generate disagreement, but evolution is the working paradigm of
scholars. Some biologists and scholars outside of biology do prefer creationism, and they may
even be right, but they are far from the mainstream, except where they engage the mainstream
in making specific criticism of evolution. Similarly, the economic theories I have laid out the
idea that markets typically maximize value, but market failure does occur, as does government
failure are generally accepted and are what are taught in all the leading universities, but that
does not mean there do not exist heterodox economists and scholars outside of economics who
reject them.
Where there is more controversy within economics is in how to apply the ideas. Does market
failure justify government provision of health insurance? Is this outweighed by the government
failure that occurs when governments do try to provide it? These questions can be answered
dierently by people operating within the standard paradigm, depending on how they view the
facts. The question of the degree of government failure, in particular, is very dicult to answer
with precision, because it requires making political predictions. Ones view of the desirability of
laws to regulate libelous newspaper articles may depend heavily on whether it is the Communist
Party that will win future elections or a democratic party.35
33
On the pros and cons of reliance on interested providers of information, see Eric Rasmusen, Lobbying
When the Decisionmaker Can Acquire Independent Information, Public Choice, 77: 899-913 (1993).
34
xxx Do write more here.
35
xxx to be finished at some later date. In this section, I can at least hope to show the reader what facts
37
he must believe are true to support certain government regulations currently used in the United States
and Europe. Also asdd a section 6 on alterntative evaluation rules such as Murrays creativity, religious
reasons, and so forth.
38
Faculty of Law, Monash University
Research Paper No 2012/05
Conceptualising Social and Economic

Regulation: Implications for Modern
Regulators and Regulatory Activity
Eric Windholz and Graeme Hodge
This paper can be downloaded without charge from the Social Science Research Network
electronic library at: http://ssrn.com/abstract= 2215334
www.law.monash.edu
This paper was first published in (2012) 38(2) Monash University Law Review 212
Electroniccopy
Electronic copy available
available at:
at: http://ssrn.com/abstract=2215334
http://ssrn.com/abstract=2215334
CONCEPTUALISING SOCIAL AND ECONOMIC
REGULATION: IMPLICATIONS FOR MODERN
REGULATORS AND REGULATORY ACTIVITY
ERIC WINDHOLZ* AND GRAEME A HODGE**
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III DIFFERENTIATING SOCIAL AND ECONOMIC REGULATION

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1 Correcting for the Damaging Effects of Economic Activity

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Social Regulation
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V THREE ILLUSTRATIVE CASE STUDIES

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A Utility Regulation Traditional Economic Regulation

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B Occupational Health and Safety Regulation Traditional

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C Australian Competition and Consumer Commission A

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VI DISCUSSION AND IMPLICATIONS
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European Financial Management, Vol. 11, No. 4, 2005, 439451
Understanding Regulation
Andrei Shleifer
Whipple V. N. Jones Professor of Economics, Harvard University
email: ashleifer@harvard.edu
1. The Puzzle of Regulation
The American and European societies are much richer today than they were 100 years
ago, yet they are also vastly more regulated. Today, we live in houses and apartment
buildings whose construction from zoning, to use of materials, to fire codes is
heavily regulated. We eat food grown with heavily regulated fertilizers and hormones,
processed in heavily regulated factories with publicly monitored technologies, and
sold in heavily regulated outlets with elaborate labels and warnings. Our means of
transport, including cars, buses, and airplanes, are made, sold, driven, and maintained
under heavy government regulation. Our children attend schools that teach heavily
regulated curriculae, visit doctors following heavily regulated procedures and paid
government-controlled prices, and play on play-grounds using government-mandated
safety standards.
The extraordinary pervasiveness of government regulation in our lives raises a
number of questions. Is regulation generally a good idea, as the positive correlation
between its growth and the growth of income seems to indicate, or has it been an
obstacle to economic and social progress? Have the USA and Western Europe grown
in spite of it? How much regulation of a particular activity is appropriate? Does the
nature of the activity being regulated, or the characteristics of a country, influence the
optimal choice? Is the level of regulation we observe in fact an outcome of efficient
social choice, or are other factors as or more important?
Over the twentieth century, economists have come up with a number of ways of
thinking about government regulation. In this paper, I review some of the key theories
of economic regulation, and assess their relevance, paying particular attention to the
regulation of securities markets. The three theories I focus on are the welfare-theoretic
or public interest theory of regulation associated with Pigou (1938), the contracting
theory associated with Coase (1960), and the capture theory of Stigler (1971). I then
describe an alternative way of thinking about regulation and social control of business
more generally, developed in a series of papers with Simeon Djankov, Edward
Glaeser, Rafael La Porta, and Florencio Lopez-de-Silanes. Finally, I use this theory
to shed light on some differences in regulatory patterns around the world.
Keynote Address at the 2004 European Financial Management Association (EFMA) Meetings,
Basel, Switzerland, 2 July 2004.
# Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
440 Andrei Shleifer
2. Theories of Regulation
The standard public interest or helping hand theory of regulation is based on two
assumptions. First, unhindered markets often fail because of the problems of mono-
poly or externalities. Second, governments are benign and capable of correcting these
market failures through regulation. This theory of regulation has been used both as a
prescription of what governments should do, and as a description of what they
actually do, at least in democratic countries. According to this theory, governments
control prices so that natural monopolies do not overcharge, impose safety standards
to prevent accidents such as fires or mass poisonings, regulate jobs to counter the
employers monopsony power over the employee, regulate security issuances so
investors are not cheated, and so on. The public interest theory of regulation has
become the cornerstone of modern public economics, as well as the bible of socialist
and other left-leaning politicians. It has been used to justify much of the growth of
public ownership and regulation over the twentieth century (Allais, 1947; Meade,
1948; Lewis, 1949).
Public interest theory of regulation has been subjected to a number of criticisms,
associated mostly with the Chicago School of Law and Economics. These criticisms
proceed in three intellectual steps. First, markets and private orderings can take care
of most market failures without any government intervention at all, let alone regula-
tion. Second, in the few cases where markets might not work perfectly, private
litigation can address whatever conflicts market participants might have. And third,
even if markets and courts cannot solve all problems perfectly, government regulators
are incompetent, corrupt, and captured, so regulation would make things even worse.
Consider these three lines of argument in order.
The first line of attack criticises the public interest theory for exaggerating the
extent of market failure, and for failing to recognise the ability of competition and
private orderings to address many of the alleged problems. Competition for labour,
the argument goes, itself assures that employers provide safety and good working
conditions for employees. If an employer failed to do so, his competitors would offer
the more efficient packages, and thereby attract better workers at lower wages.
Likewise, private markets assure the efficient safety levels in a variety of products
and services, such as trains, houses or cars. Sellers who fail to deliver such levels of
safety lose market share to competitors who run safer trains, build safer houses, or
produce safer cars. The competition criticism also maintains that what looks like a
monopoly to would-be regulators is subject to potential entry and competition.
Moreover, cartels typically break up after a short time because their participants
cheat to make windfall profits.
Even when competitive forces are not strong enough, private orderings work to
address potential market failures. Neighbours resolve disputes among themselves,
without any government intervention, because they need to get along with each
other over long stretches of time (Ellickson, 1991). Industries form associations that
guarantee quality, and penalise cheaters among themselves to assure that, in the long
run, customers continue their patronage (Greif, 1989; Bernstein, 1992). Families,
cities, and ethnic groups establish reputations in the marketplace, and thereby control
any possible misconduct by their members.
The thrust of these arguments is that the domain of market failure or socially
harmful conduct that is not automatically controlled by impersonal forces of compe-
tition is extremely limited, and therefore so is the scope for any desirable intervention
# Blackwell Publishing Ltd, 2005

Understanding Regulation 441
by the state. But this, of course, is only the first step in a much broader assault on
regulation.
The second step, originating in the work of Coase (1960), maintains further that, in
the few cases where competition and private orderings do not successfully address
market failures, impartial courts can do so by enforcing contracts and common law
rules for torts. Employers can offer workers employment contracts that specify what
happens in the event of an accident, security issuers can voluntarily disclose informa-
tion to potential investors and guarantee its accuracy, and so on. As long as courts
enforce these contracts, equilibrium outcomes are efficient. Indeed, even when there
are no contracts, efficient adjudication by courts restores efficiency through appro-
priate tort rules. When courts award damages to harmed plaintiffs correctly, potential
tort-feasers face exactly the right incentives to take the efficient level of precaution
(Posner, 1972). With well functioning courts enforcing property rights and contracts,
the scope for desirable regulation even by a helping hand government is minimal.
Coases logic has proved extremely powerful, both as a technical critique of regula-
tion and as a libertarian manifesto. Following Coase, the Chicago school has gone
much further. The third, and crucial step in its critique of regulation is to question the
assumptions of a benevolent and competent government. This is the essence of
Stiglers capture theory (Stigler, 1971; Posner, 1974). As forcefully summarised by
Peltzman (1989), this theory consists of two basic propositions. First, the political
process of regulation is typically captured by the industry. Regulation not only fails to
counter monopoly pricing, but is to the contrary used to sustain it through state
intervention. Second, even in the cases where, under the influence of organised
consumer groups, regulators try to promote social welfare, they are incompetent
and rarely succeed. Thus the scope for government regulation is minimal at best,
and such intervention is futile and dangerous even in the rare cases where there is
scope.
The Chicago critique of public interest regulatory theory is one of the finest
moments of twentieth century economics. The pioneers of this critique not only
provided new theories for thinking about the role of government, but also delivered
predictions which in many cases have been supported by the evidence particularly
the evidence of pervasive regulatory failure. Yet the Chicago critique cannot be the
final answer, for two crucial reasons.
At the theoretical level, the Chicago Schools confidence in private orderings and in
courts is excessive. Private orderings indeed work extremely well in some situations,
but they also degenerate into the anarchy of private enforcement, where the strong
and not the just win the day. Moreover, Coase and his followers have given far too
much leeway to courts, relying on them as unbiased, informed, and incorruptible
promoters of social welfare. Much evidence, however, shows that courts around the
world are more often than not highly inefficient, politically motivated, slow, and even
corrupt (Johnson et al., 2002; Djankov et al., 2003a). The lopsided belief in the
benevolence of courts and the malevolence of regulators has neither a conceptual
foundation, nor a solid grounding in reality. After all, both judges and regulators are
government agents, subject to political pressures, incentives, and constraints.
At the empirical level, the Chicago tradition has failed to come to grips with the
basic facts described in the first paragraph of this paper, namely that today we live in
a much richer, more benign, but also more regulated society, and that as consumers
we are generally happy with most of the regulations that protect us. We are happier
knowing that trains and airplanes are safe than savouring the thought of a fortune
442 Andrei Shleifer
which our loved ones would collect in a trial should we die in a fiery crash. In
securities markets, investors prefer a level-playing regulated field to the prospect of
loss recovery through litigation. Indeed, as I discuss below, there is strong evidence
that regulation is beneficial for the development of financial markets and to public
participation in them (Glaeser et al., 2001; La Porta et al., 2004). A more nuanced
theory, which incorporates the powerful Chicago critiques of the public interest
approach to government, but also recognises the benefits of public involvement in
at least some activities, is clearly needed to keep the logic and the facts together.
3. The Enforcement Theory of Regulation
Suppose that the society wishes to control business to pursue some socially desirable
end: marginal cost pricing, safe food and water, or safety precautions by firms. As
Djankov et al. (2003b) argue, there are four distinct strategies of such control, invol-
ving ever growing powers of the state vis-a-vis private individuals: market discipline,
private litigation, public enforcement through regulation, and state ownership. These
four strategies for social control of business are not mutually exclusive: competition
and regulation often operate in the same market, as do private litigation and public
regulation. In addition, there are common intermediate strategies of social control of
business, such as private litigation to enforce public rules, which lies between pure
regulation and pure litigation. Nonetheless, these four categories provide a useful
analytical classification, which also has the advantage of following closely the his-
torical discussions of the proper role of government.
To illustrate these categories, take the example of social control of securities issues.
Promoters of such issues, be they entrepreneurs or underwriters, have a strong
incentive to cheat investors by selling them worthless or overvalued securities, taking
the money, and running off. When this so-called promoters problem is severe, people
stop buying new issues, with the result that financial markets fail to grow or even
disappear.
Suppose that the society has an interest in having broad and liquid securities
markets and, to this end, deems it desirable that firms issuing equity disclose accurate
information about their circumstances. The society has four choices. First, it can rely
on the reputational incentives of the issuers themselves, or of their underwriters, to
disclose the truth about the securities this is the market discipline solution. Second,
the society can rely on private suits by buyers of securities who feel that they had been
cheated, under the general doctrines of contract or tort. In this scenario, security
issuance would be treated as any other instance of a contract or a tort. The question
for the court is whether the issuer or the underwriter provided inaccurate information
or, alternatively, failed to provide information that a plausible standard of care would
require. Third, the society can create a regulatory agency which mandates what
should be disclosed by security issuers, inspects these disclosures, and penalises issuers
and underwriters who fail to confirm to the regulations.1 Finally the government can
nationalise all security issuance, so its own agents make representations and sell
stocks. These are the four basic strategies of enforcement of good conduct.
1
The regulatory agency can also establish the rules for security issuance, but leave the enforce-
ment of these rules to private litigation by the wronged investors.

These four strategies are ranked by the growing degree of public control over
economic activity. With competition and private orderings, there is basically no public
involvement at all. With courts, there is a role for impartial judges enforcing rules of
good behaviour. These rules do not need to come from legislation, but may instead
derive from custom or from judge-made common law and precedents. Even so, there
is a public agent, the judge, who has at least some decision-making authority. With
regulators, control by the state increases sharply. The state now writes the rules,
inspects the product before it is sold, and possibly penalises sellers for delivering a
bad product. Both the scope of government activity, and its centralisation, are greatly
increased relative to private litigation. Finally, with state ownership, the government
takes complete control over an activity.
The basic premise of the enforcement theory of regulation is that all of these
strategies for social control of business are imperfect, and that optimal institutional
design involves a choice among these imperfect alternatives. The enforcement theory
specifically recognises a basic trade-off between two social costs of each institution:
disorder and dictatorship. Disorder refers to the ability of private agents to harm
others to steal, overcharge, injure, cheat, impose external costs, etc. Dictatorship
refers to the ability of the government and its officials to impose such costs on private
agents. As we move from private orderings to private litigation to regulation to public
ownership, the powers of the government rise, and those of private agents fall. The
social losses from disorder decline as those from dictatorship increase. This tradeoff,
which Djankov et al. (2003b) call the Institutional Possibility Frontier, is shown in
Figure 1.
Consider the four strategies of social control of business from the perspective of this
trade-off. The principal strength of market discipline as the method of enforcing good
conduct is that it is free of public enforcers. There is no possibility of politicisation of
Social losses due to

private expropriation
(Disorder)
Private orderings
Independent judges
Total loss Institutional possibility frontier (IPF)

minimisation
Regulatory state
Socialism
45
Social losses due to state

expropriation (Dictatorship)
Fig. 1. Institutional possibilities.

Source: Djankov et al., 2003b.

444 Andrei Shleifer
rules of conduct, of corruption, of costly and delayed enforcement of rules, of random

or compromised choice of one competitor over another. But market discipline may be
very weak at controlling disorder. Market participants can use their economic,
political, or social resources to damage their rivals using methods ranging from
predation to monopoly pricing to social exclusion to outright theft or violence. One
mans peaceful private orderings become another mans death in the hands of the
mafia. When market discipline can successfully control disorder and avoid Hobbesian
anarchy, it is the best approach because it has the lowest social costs of dictatorship.
Any case for public intervention relies crucially on the presumptive failure of market
discipline to control disorder.
In many instances, this case for the effectiveness of market discipline is powerful.
Consider the regulation of entry: the restriction on entry by new entrepreneurs
through licensing and permits. Since entering firms are small, and since any failure
to deliver quality products would be almost immediately recognised and penalised by
customers, it is not clear why the quality of entrepreneurs or of their firms should be
regulated at the entry level. To the extent that market discipline can control disorder,
regulation or even courts, are unnecessary.
But market discipline may not be sufficient. Employers may under-invest in safety
and then blame accidents on an injured workers own carelessness. In security issu-
ance, a fraudulent scheme can separate investors from their money very quickly, and
undermine confidence in markets. The frequent Ponzi schemes in emerging markets,
in which hundreds of thousands of investors lose their lifetime savings, are colourful
evidence that market discipline does not eliminate fraud. In such instances, to control
disorder, societies may efficiently accept a higher level of government intervention.
The traditional libertarian response to such market failure is to move one notch
toward more dictatorship and less disorder by relying on the enforcement of good
conduct through private litigation. Injured employees can sue their employers for
damages. Investors can sue issuers and underwriters for damages when they believe
that representations about the companys prospects were false or incomplete. Ideally,
a judge would recognise quickly whether investors have been misled, and award
damages to compensate them for their losses.
Private litigation has many advantages. At least in principle, such litigation is of no
special interest to the government, and hence disputes can be resolved apolitically,
with no favours to influential parties. Judges may also acquire experience and expert-
ise in contract enforcement (as well as in handling tort cases), and hence address
problems efficiently and expeditiously. This, indeed, is what Coase (1960) and later
Posner (1995) had in mind in making the case for courts.
The reality of litigation is not, unfortunately, so perfect, and the trade-off between
dictatorship and disorder is helpful for thinking about courts as well. To begin, the
same forces that undermine the effectiveness of private orderings influence courts as
well. As a result, courts are often subverted and the strong not the just win the case
(Galanter, 1974). Some of the mechanisms of influencing courts are entirely legal.
Hiring superior legal talent or using legal delay tactics are among them. Individual
investors in Ponzi schemes or worthless security issues may stand little chance in court
against wealthy and well-represented promoters.
Still other mechanisms, such as political influence on judges, are perhaps less
appropriate, but still common, especially in countries where judges are not politically
insulated (Ramseyer and Rasmusen, 1997). Politicians can then influence judges to
help themselves and their financial backers, as recent evidence from Italy illustrates
only too clearly. In still other countries, judges are bribed with cash, benefits, or
promises of promotion, as well as threatened if they do not rule for the strong (Dal Bo
et al., 2003). Because the rich and the politically connected have more resources to
influence the path of justice, private litigation cannot be always counted on as an
effective mechanism of enforcing socially desirable conduct.
A common mechanism for protecting courts from influence is to formalise legal
procedures through codes, so as to minimise judicial discretion and the potential for
subversion. Most countries, especially those in the civil law tradition, have heavily
formalised their legal procedures to assure accuracy, and to prevent the subversion of
justice. But such formalism is associated with serious delays, as well as unpredictable
outcomes (Djankov et al., 2003a). The Coasian ideal of cheap and efficient justice
through private litigation is a far cry from reality.
A related mechanism for controlling the subversion of judges is to make them
employees of the state, whose career concerns protect them from succumbing to
outside influence. Truly independent judges are more vulnerable to private subversion
than the state employed ones. But as judges become more dependent on the state, the
risk of politicisation of their decisions rises.
As with market discipline, the enforcement theory points to the circumstances
where private litigation is likely to be relatively effective. It is likely to work better
where judges are better insulated from political pressure, which is probably the case in
the more advanced economies. It is also likely to be more effective in the cases where
the problem of inequality of weapons between the litigants is smaller. For example,
in relatively advanced economies, tenant landlord disputes or employment contract
disputes may well be most efficiently resolved in specialised courts. Yet in countries
and in the types of conflicts where judges are vulnerable to subversion, and the
inequality of weapons is considerable pure private litigation is unlikely to be the
efficient method of enforcing socially desirable conduct. Securities markets are one
example illustrating this point: it is simply not plausible that defrauded investors can
prevail in court against the richer, better connected, and better represented promoters
and underwriters. Mechanisms for social control of business that are more effective at
controlling disorder may be needed even if they are more vulnerable to dictatorship.
This brings us to the third strategy of enforcing rules, government regulation.
Before turning to full-fledged public enforcement, note an extremely important inter-
mediate strategy, namely private litigation using public rules. A government can
create a set of rules governing private conduct and then leave the enforcement of
these rules to private parties. The reason for doing so is that the enforcement of
specific statutes through litigation might be considerably cheaper than that of broad
contractual principles. It may be efficient, for example, for the government to specify
the appropriate safety standards but to leave their enforcement to workers through
private litigation. In securities markets, the government can mandate specific disclo-
sures by an issuer, but then let dissatisfied investors sue. It may be cheaper for
investors to establish in a trial that the company has failed to reveal specific informa-
tion whose disclosure was mandated by law, than to prove issuer negligence in the
absence of a statute.
Private enforcement of public statutes solves a number of problems with pure
litigation. First, as the examples above suggest, the burdens on the courts and the
litigants of establishing liability fall considerably when the statutes describe precisely
what facts are needed to do so. Second, subversion of judges becomes more difficult
and expensive when they lose discretion. It may be relatively easy to convince a
446 Andrei Shleifer
judge by persuasion or bribery that a security issuer who concealed information

from investors is not liable when there are no specific rules as to what needs to be
disclosed. It is much harder for the issuer to convince the same judge when the law
states specifically what must be disclosed. Perhaps for these reasons, private enforce-
ment of public rules is a highly efficient strategy of enforcing good conduct in many
situations (Hay and Shleifer, 1998; Hay et al., 1996). La Porta et al. (2004) show
empirically that this is a crucially important strategy for enforcing good conduct in
security issuance. Barth et al. (2003) similarly point to the importance of private
enforcement of public disclosure rules in bank regulation.
At the same time, the creation of public rules even those enforced privately
raises the scope for public abuse. Such rules can be used to expropriate the politically
weak and to favour the politically strong. Mandatory safety precautions in factories,
mines, and meat-packing plants during the progressive era in the USA at the begin-
ning of the twentieth century, for example, are sometimes interpreted as an attempt by
large established firms to prevent entry by smaller rivals by raising their costs from
regulatory compliance (Libecap, 1992; Coppin and High, 1999).
Compared to the enforcement strategies described above, public regulation has a
number of advantages in controlling disorder. First, unlike judges, public regulators
can be expert and motivated to pursue social objectives in specific areas. This, indeed,
has been the principal argument for public regulation of securities markets (Landis,
1938; Glaeser et al., 2001; Pistor and Xu, 2002). A regulator can establish some
expertise, for example, as to what constitutes a material omission from a prospectus,
present market participants with specific rules, and then use its resources to make sure
that these rules are followed by imposing its own sanctions or by convincing courts to
rely on its rules. Second, because regulators can be provided with incentives to enforce
social policy, they can in principle be more difficult to subvert than the disinterested
judges. This combination of expertise and incentives is presumably what makes public
enforcement in some circumstances more efficacious than private enforcement.2
Alas, public regulation is not without its problems, and the key problem is the risk
of public abuse of market participants by an official who is either pursuing his own
political interests or is captured by a particular group, including the regulated indus-
try itself. Politicisation and over-enforcement are a particular problem in societies
with few checks and balances: the executive can selectively turn its regulators against
its enemies rather than violators of rules. Moreover, as emphasised by Stigler (1971),
regulation can be subverted by competitors who want to use it to deter entry or to
maintain cartels. Although motivated regulators might be more difficult to subvert
than judges, regulated industries have developed a range of techniques to turn
regulation into a mechanism of protecting their rents rather than public welfare.
The costs of dictatorship rise as those of disorder decline.
So what are the circumstances where regulation is the appropriate strategy of
enforcing good conduct? The basic implication of the theory that the resort to
regulation is only necessary when the level of disorder is too high for private orderings
and even courts to deal with successfully. This case is most compelling in situations
where the problem of inequality of weapons between private parties involved in a
2
Along these lines, Glaeser and Shleifer (2003) argue that The rise of the regulatory state in
the USA during the Progressive Era at the beginning of the twentieth century was a response to
the growing problems of subversion of courts by robber barons.

transaction is too severe. As indicated earlier, securities regulation is one instance

where this case for regulation based on the enforcement considerations is compelling.
Workplace safety is yet another. In contrast, entry of new firms is unlikely to require
regulatory control, and most labour regulations in environments that have competi-
tion for labour are difficult to justify on efficiency grounds.
The second implication is that the case for regulation is stronger when public abuse
of the private sector can be restrained. This prediction suggests that regulation
relative to doing nothing is a more attractive option in richer countries, where the
checks on the government are stronger. In contrast, regulation is a particularly poor
idea in undemocratic countries and in countries with extremely powerful executives,
where the risks of abuse are the greatest.
Finally, in some situations, nothing short of government ownership can address the
problem of disorder. If monopolies cannot be restrained through regulation, if quality
cannot be assured except with full state control, if public safety is jeopardised then
one can make a case for state ownership. For example, Hart et al. (1997) argue that
prisons might be properly publicly owned because the risk that private jailers mistreat
inmates, who after all have few legal rights and cannot count on the market or even
on regulation to protect them, is too high. Likewise, the military and the police tend to
be state-controlled because the risk of disorder from private control is unacceptable.
Although in some instances the case for government ownership as a means of
dealing with disorder is compelling, state ownership has the obvious problems of
public abuse and dictatorship. Because the government uses its control to pursue
political ends, the performance record of state enterprises around the world has been
dismal, and the benefits of privatisation large (La Porta and Lopez-de-Silanes, 1999;
La Porta et al., 2002; Megginson and Netter, 2001; Djankov and Murrell, 2002). The
dramatic failure of state socialism as an economic system is only the most remarkable
illustration of the problems of dictatorship taken to an extreme, where all economic
problems are solved to maintain political control of the communist party (Kornai,
1992). Although an efficiency case for state ownership as a means of controlling
disorder can be made, the range of activities where this case is compelling is modest.
This discussion completes a brief overview of alternative strategies of enforcement
of socially desirable conduct. I listed some of the ingredients of the efficient choice. In
the next section, I try to compare these implications to regulatory practice.
4. Regulatory Practice
In my presentation of the enforcement theory, I have focused on the costs and benefits of
alternative means of social control of business, and thereby pointed to what might be,
under different circumstances, the efficient choice. This focus on efficient institutional
choices has considerable descriptive and prescriptive power. Moreover, even efficient
institutional arrangements may exhibit significant levels of both disorder and dictator-
ship. As Coase (1960) argued long ago, the fact that a society is doing the best it can with
its institutional resources does not mean that all transaction costs are eliminated.
Still, in thinking about actual institutional choices, it is crucial to recognise that not
all we see is efficient. The first source on inefficiency is the bread-and-butter of public
choice theory (Buchanan and Tullock, 1962), namely the idea that politicians, once in
power, make economic policies and institutional choices to keep themselves in power
and, to the extent possible, to become rich. These theories generally point to a
tendency toward excessive dictatorship. We expect to see excessive centralisation,
448 Andrei Shleifer
regulation, state ownership and so on even conditional on the trade-off a country

faces. Even in securities markets, we might see an excessive tendency toward state
control of stock exchanges and banks, and state restrictions on competition. The curse
of state socialism during the twentieth century illustrates this political tendency
toward dictatorship.
The second source of possible inefficiency of institutional choice is colonial trans-
plantation (La Porta et al., 1997, 1998). The legal and regulatory regimes of most
countries are not indigenous, but rather shaped by their colonial heritage. When the
English, the French, the Spaniards, the Dutch, the Germans, and the Portuguese
colonised much of the world (including the USA), they brought with them some of
their institutions. As in turns out, there is systematic variation among these institu-
tions of origin countries, shaped by their history over the last millennium (Glaeser and
Shleifer, 2002). England developed a common law tradition, characterised by the
independent judges and juries, relatively lower importance of statutory laws, and
the preference for private litigation as a means of addressing social problems.
France, in contrast, following the Romans, developed a civil law tradition, charac-
terised by state-employed judges, great importance of legal and procedural codes, and
a preference for state regulation over private litigation. Germany developed its own
civil law tradition, also based in Roman law. Finally, and crucially for the twentieth
century, the USSR developed its own system of socialist law.
Napoleon exported the French legal system through his conquests to Spain,
Portugal, and Holland, and through his and their own colonial conquests, it was
transplanted to all of Latin America, large parts of Europe, North and West Africa,
parts of the Caribbean, and parts of Asia. The common law tradition was trans-
planted by England to the USA, Canada, Australia, New Zealand, East Africa, large
parts of Asia (including India), and parts of the Caribbean. The German legal system
was voluntarily adopted in Japan, and through it Japan influenced the legal systems
of Korea, Taiwan, and China. Finally, the USSR transplanted its legal system to
socialist countries. These channels of transplantation suggest that there might be
systematic variation in property rights institutions among countries that is not a
consequence either of the pressures toward efficiency or of domestic political choice.
In the last several years, my collaborators and I completed several studies of state
ownership and regulation around the world. The areas we covered are the regulation
of entry by new firms, the regulation of judicial procedures in courts, and the
regulation of labour markets (Djankov et al., 2002, 2003a; Botero et al., 2004).
Although the data for each of these studies were collected using different procedures
covering somewhat different samples of countries, some systematic results emerge
from the analysis. Countries have pronounced styles of social control of business
intimately related to the origin of their laws. In all three areas of regulation entry,
courts, and labour socialist and French legal origin countries regulate activity more
heavily than do the common law countries. On average, the very same countries that
regulate entry also regulate courts and labour markets, and these correlations are at
least in part driven by legal origin. Moreover, the same rankings appear in the
measures of state ownership. Socialist and French legal origin countries have higher
levels of government ownership of banks (La Porta et al., 2002) and a greater role of
state-owned enterprises in the economy (La Porta et al., 1999) than do the common
law countries. This evidence suggests that colonial transplantation, rather than local
conditions, exerts a profound influence on national modes of social control of busi-
ness, including both state ownership and regulation.
This finding suggests that the observed institutional choices may well be inefficient. A
legal and regulatory system perfectly suitable for France might yield inefficiently high
levels of regulation and state ownership when transplanted to countries with fewer
checks on the government. Likewise, a system of independent courts that works in
Australia or the USA might fail in Malaysia or Zimbabwe. Indeed, the evidence on the
consequences of regulation shows that it is often excessive, especially in poor countries.
Higher levels of regulation of entry are associated with larger unofficial economies and
no measurable benefits for the quality of products (Djankov et al., 2002). Higher levels
of regulation of judicial procedures yield no benefits in simple disputes. In contrast,
more regulated legal systems appear to cost more and to produce higher delay, without
offsetting benefits in terms of perceived justice (Djankov et al., 2003a). Higher levels of
labour regulation are associated with larger unofficial economies, higher unemploy-
ment, and lower labour force participation (Botero et al., 2004).
The evidence on the importance of legal origin points to some tangible ways in
which the existing institutions fall short of their potential, as well as to some possible
directions of reform. In particular, the evidence suggests that deregulation particu-
larly in the areas such as entry and labour markets where the forces of competition are
potentially effective is a high level priority for poor countries. In these countries,
regulation is nearly universally associated with poor outcomes because public officials
abuse their power. Deregulation is likely to diminish dictatorship without a significant
increase in disorder.
But the evidence also points to some difficulties of reform. One cannot assume that,
in civil law countries, general jurisdiction courts could efficiently resolve disputes
these courts are too cumbersome to meet this goal. The most attractive areas for
deregulation in developing economies are those where competition and market dis-
cipline, rather than courts, can assure socially desirable outcomes and control dis-
order. In contrast, in the developed countries, courts especially specialised courts
are becoming an increasingly attractive alternative to regulation.
5. Conclusion
The framework presented here allows for a comparative analysis of institutions from
the perspective of the trade-off between dictatorship and disorder. This trade-off
looks different for different countries, and even for different activities within a
country. This trade-off can help organise the analysis of efficient institutional choice,
which recognises both the needs of a particular environment, and the constraints
imposed by a countrys political structure and institutional tradition. I apply this
framework to the example of regulation of securities markets, and argue that private
enforcement of public rules may emerge as an efficient strategy of social control of
these markets. Some empirical evidence assembled by La Porta et al. (2004) is broadly
consistent with this point of view. With more data about particular countries and
activities, one can use the framework described here to examine alternative strategies
of social control of business.
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pp. 321.

CONSTITUTIONAL DESIGN
FOR DIVIDED SOCIETIES
Arend Lijphart
Arend Lijphart is Research Professor Emeritus of Political Science at

the University of California, San Diego. He is the author of Patterns of
Democracy: Government Forms and Performance in Thirty-Six Coun-
tries (1999) and many other studies of democratic institutions, the
governance of deeply divided societies, and electoral systems.
Over the past half-century, democratic constitutional design has un-

dergone a sea change. After the Second World War, newly independent
countries tended simply to copy the basic constitutional rules of their
former colonial masters, without seriously considering alternatives.
Today, constitution writers choose more deliberately among a wide
array of constitutional models, with various advantages and disadvan-
tages. While at first glance this appears to be a beneficial development,
it has actually been a mixed blessing: Since they now have to deal with
more alternatives than they can readily handle, constitution writers risk
making ill-advised decisions. In my opinion, scholarly experts can be
more helpful to constitution writers by formulating specific recommen-
dations and guidelines than by overwhelming those who must make the
decision with a barrage of possibilities and options.
This essay presents a set of such recommendations, focusing in par-
ticular on the constitutional needs of countries with deep ethnic and
other cleavages. In such deeply divided societies the interests and de-
mands of communal groups can be accommodated only by the
establishment of power sharing, and my recommendations will indicate
as precisely as possible which particular power-sharing rules and insti-
tutions are optimal and why. (Such rules and institutions may be useful
in less intense forms in many other societies as well.)
Most experts on divided societies and constitutional engineering
broadly agree that deep societal divisions pose a grave problem for
democracy, and that it is therefore generally more difficult to establish
and maintain democratic government in divided than in homogeneous
Journal of Democracy Volume 15, Number 2 April 2004

Arend Lijphart 97
countries. The experts also agree that the problem of ethnic and other
deep divisions is greater in countries that are not yet democratic or
fully democratic than in well-established democracies, and that such
divisions present a major obstacle to democratization in the twenty-
first century. On these two points, scholarly agreement appears to be
universal.
A third point of broad, if not absolute, agreement is that the success-
ful establishment of democratic government in divided societies
requires two key elements: power sharing and group autonomy. Power
sharing denotes the participation of representatives of all significant
communal groups in political decision making, especially at the ex-
ecutive level; group autonomy means that these groups have authority
to run their own internal affairs, especially in the areas of education
and culture. These two characteristics are the primary attributes of the
kind of democratic system that is often referred to as power-sharing
democracy or, to use a technical political-science term, consocia-
tional democracy. 1 A host of scholars have analyzed the central role
of these two features and are sympathetic to their adoption by divided
societies.2 But agreement extends far beyond the consociational school.
A good example is Ted Robert Gurr, who in Minorities at Risk: A Glo-
bal View of Ethnopolitical Conflicts clearly does not take his
inspiration from consociational theory (in fact, he barely mentions it),
but based on massive empirical analysis reaches the conclusion that
the interests and demands of communal groups can usually be accom-
modated by some combination of the policies and institutions of
autonomy and power sharing. 3
The consensus on the importance of power sharing has recently been
exemplified by commentators reactions to the creation of the Govern-
ing Council in Iraq: The Council has been criticized on a variety of
grounds, but no one has questioned its broadly representative composi-
tion. The strength of the power-sharing model has also been confirmed
by its frequent practical applications. Long before scholars began ana-
lyzing the phenomenon of power-sharing democracy in the 1960s,
politicians and constitution writers had designed power-sharing solu-
tions for the problems of their divided societies (for example, in Austria,
Canada, Colombia, Cyprus, India, Lebanon, Malaysia, the Netherlands,
and Switzerland). Political scientists merely discovered what political
practitioners had repeatedlyand independently of both academic ex-
perts and one anotherinvented years earlier.
Critics of Power Sharing

The power-sharing model has received a great deal of criticism since
it became a topic of scholarly discourse three decades ago. Some crit-
ics have argued that power-sharing democracy is not ideally democratic
98 Journal of Democracy
or effective; others have focused on methodological and measurement

issues.4 But it is important to note that very few critics have presented
serious alternatives to the power-sharing model. One exception can be
found in the early critique by Brian Barry, who in the case of Northern
Ireland recommended cooperation without cooptationstraightfor-
ward majority rule in which both majority and minority would simply
promise to behave moderately. 5 Barrys proposal would have meant
that Northern Irelands Protestant majority, however moderate, would
be in power permanently, and that the Catholic minority would always
play the role of the loyal opposition. Applied to the case of the Iraqi
Governing Council, Barrys alternative to power sharing would call
for a Council composed mainly or exclusively of moderate members of
the Shiite majority, with the excluded Sunnis and Kurds in opposi-
tion. This is a primitive solution to ethnic tensions and extremism, and
it is nave to expect minorities condemned to permanent opposition to
remain loyal, moderate, and constructive. Barrys suggestion therefore
cannot beand, in practice, has not beena serious alternative to
power sharing.
The only other approach that has attracted considerable attention
is Donald L. Horowitzs proposal to design various electoral mecha-
nisms (especially the use of the alternative vote or instant runoff)
that would encourage the election of moderate representatives. 6 It re-
sembles Barrys proposal in that it aims for moderation rather than
broad representation in the legislature and the executive, except that
Horowitz tries to devise a method to induce the moderation that Barry
simply hopes for. If applied to the Iraqi Governing Council, Horowitzs
model would generate a body consisting mainly of members of the
Shiite majority, with the proviso that most of these representatives
would be chosen in such a way that they would be sympathetic to the
interests of the Sunni and Kurdish minorities. It is hard to imagine
that, in the long run, the two minorities would be satisfied with this
kind of moderate Shiite representation, instead of representation by
members of their own communities. And it is equally hard to imagine
that Kurdish and Sunni members of a broadly representative constitu-
ent assembly would ever agree to a constitution that would set up
such a system.
Horowitzs alternative-vote proposal suffers from several other weak-
nesses, but it is not necessary to analyze them in this article. 7 The
main point that is relevant here is that it has found almost no support
from either academic experts or constitution writers. Its sole, and only
partial, practical application to legislative elections in an ethnically
divided society was the short-lived and ill-fated Fijian constitutional
system, which tried to combine the alternative vote with power-shar-
ing; it was adopted in 1999 and collapsed in 2000. 8 With all due
respect to the originality of his ideas and the enthusiasm with which
Arend Lijphart 99
he has defended them, Horowitzs arguments do not seem to have

sparked a great deal of assent or emulation. 9
One Size Fits All?
In sum, power sharing has proven to be the only democratic model that
appears to have much chance of being adopted in divided societies, which
in turn makes it unhelpful to ask constitution writers to contemplate
alternatives to it. More than enough potential confusion and distraction
are already inherent in the consideration of the many alternatives within
power sharing. Contrary to Horowitzs claim that power-sharing democ-
racy is a crude one size fits all model,10 the power-sharing systems
adopted prior to 1960 (cited earlier), as well as more recent cases (such as
Belgium, Bosnia, Czechoslovakia, Northern Ireland, and South Africa),
show enormous variation. For example, broad representation in the ex-
ecutive has been achieved by a constitutional requirement that it be
composed of equal numbers of the two major ethnolinguistic groups (Bel-
gium); by granting all parties with a minimum of 5 percent of the legislative
seats the right to be represented in the cabinet (South Africa, 199499);
by the equal representation of the two main parties in the cabinet and an
alternation between the two parties in the presidency (Colombia, 1958
64); and by permanently earmarking the presidency for one group and
the prime ministership for another (Lebanon).
All of these options are not equally advantageous, however, and do
not work equally well in practice, because the relative success of a
power-sharing system is contingent upon the specific mechanisms de-
vised to yield the broad representation that constitutes its core. In fact,
the biggest failures of power-sharing systems, as in Cyprus in 1963 and
Lebanon in 1975, must be attributed not to the lack of sufficient power
sharing but to constitution writers choice of unsatisfactory rules and
institutions.
These failures highlight the way in which scholarly experts can help
constitution writers by developing recommendations regarding power-
sharing rules and institutions. In this sense, Horowitzs one size fits
all charge should serve as an inspiration to try to specify the optimal
form of power sharing. While the power-sharing model should be adapted
according to the particular features of the country at hand, it is not true
that everything depends on these individual characteristics. In the fol-
lowing sections I outline nine areas of constitutional choice and provide
my recommendations in each area. These constitute a one size power-
sharing model that offers the best fit for most divided societies regardless
of their individual circumstances and characteristics.
1) The legislative electoral system. The most important choice facing

constitution writers is that of a legislative electoral system, for which
the three broad categories are proportional representation (PR),

majoritarian systems, and intermediate systems. For divided societies,
ensuring the election of a broadly representative legislature should be
the crucial consideration, and PR is undoubtedly the optimal way of
doing so.
Within the category of majoritarian systems, a good case could be
made for Horowitzs alternative-vote proposal, which I agree is superior
to both the plurality method and the two-ballot majority runoff. 11 Nev-
ertheless, there is a scholarly consensus against majoritarian systems in
divided societies. As Larry Diamond explains:
If any generalization about institutional design is sustainable . . . it is that

majoritarian systems are ill-advised for countries with deep ethnic, re-
gional, religious, or other emotional and polarizing divisions. Where
cleavage groups are sharply defined and group identities (and intergroup
insecurities and suspicions) deeply felt, the overriding imperative is to
avoid broad and indefinite exclusion from power of any significant group.12
The intermediate category can be subdivided further into semi-pro-

portional systems, mixed systems, and finally, majoritarian systems
that offer guaranteed representation to particular minorities. Semi-pro-
portional systemslike the cumulative and limited vote (which have
been primarily used at the state and local levels in the United States) and
the single nontransferable vote (used in Japan until 1993)13may be
able to yield minority representation, but never as accurately and con-
sistently as PR. Unlike these rare semi-proportional systems, mixed
systems have become quite popular since the early 1990s.14 In some of
the mixed systems (such as Germanys and New Zealands) the PR com-
ponent overrides the plurality component, and these should therefore be
regarded not as mixed but as PR systems. To the extent that the PR
component is not, or is only partly, compensatory (as in Japan, Hungary,
and Italy), the results will necessarily be less than fully proportional
and minority representation less accurate and secure. Plurality combined
with guaranteed representation for specified minorities (as in India and
Lebanon) necessarily entails the potentially invidious determination of
which groups are entitled to guaranteed representation and which are
not. In contrast, the beauty of PR is that in addition to producing propor-
tionality and minority representation, it treats all groupsethnic, racial,
religious, or even noncommunal groupsin a completely equal and
evenhanded fashion. Why deviate from full PR at all?
2) Guidelines within PR. Once the choice is narrowed down to PR,

constitution writers need to settle on a particular type within that sys-
tem. PR is still a very broad category, which spans a vast spectrum of
complex possibilities and alternatives. How can the options be nar-
rowed further? I recommend that highest priority be given to the
Arend Lijphart 101
selection of a PR system that is simple to understand and operatea

criterion that is especially important for new democracies. From that
simplicity criterion, several desiderata can be derived: a high, but not
necessarily perfect, degree of proportionality; multimember districts
that are not too large, in order to avoid creating too much distance
between voters and their representatives; list PR, in which parties present
lists of candidates to the voters, instead of the rarely used single trans-
ferable vote, in which voters have to rank order individual candidates;
and closed or almost closed lists, in which voters mainly choose parties
instead of individual candidates within the list. List PR with closed
lists can encourage the formation and maintenance of strong and cohe-
sive political parties.
One attractive model along these lines is the list-PR system used in
Denmark, which has 17 districts that elect an average of eight represen-
tatives each from partly open lists. The districts are small enough for
minority parties with more than 8 percent of the vote to stand a good
chance of being elected.15 In addition to the 135 representatives elected
in these districts, there are 40 national compensatory seats that are ap-
portioned to parties (with a minimum of 2 percent of the national vote)
in a way that aims to maximize overall national proportionality.16 The
Danish model is advantageous for divided societies, because the com-
pensatory seats plus the low 2 percent threshold give small minorities
that are not geographically concentrated a reasonable chance to be rep-
resented in the national legislature. While I favor the idea of maximizing
proportionality, however, this system does to some extent detract from
the goal of keeping the electoral system as simple and transparent as
possible. Moreover, national compensatory seats obviously make little
sense in those divided societies where nationwide parties have not yet
developed.
3) Parliamentary or presidential government. The next important deci-

sion facing constitution writers is whether to set up a parliamentary,
presidential, or semi-presidential form of government. In countries with
deep ethnic and other cleavages, the choice should be based on the
different systems relative potential for power sharing in the executive.
As the cabinet in a parliamentary system is a collegial decision-making
bodyas opposed to the presidential one-person executive with a purely
advisory cabinetit offers the optimal setting for forming a broad power-
sharing executive. A second advantage of parliamentary systems is that
there is no need for presidential elections, which are necessarily
majoritarian in nature. As Juan Linz states in his well-known critique of
presidential government, perhaps the most important implication of
presidentialism is that it introduces a strong element of zero-sum game
into democratic politics with rules that tend toward a winner-take-all
outcome.17 Presidential election campaigns also encourage the poli-
tics of personality and overshadow the politics of competing parties

and party programs. In representative democracy, parties provide the
vital link between voters and the government, and in divided societies
they are crucial in voicing the interests of communal groups. Seymour
Martin Lipset has recently emphasized this point again by calling
political parties indispensable in democracies and by recalling E.E.
Schattschneiders famous pronouncement that modern democracy is
unthinkable save in terms of parties.18
Two further problems of presidentialism emphasized by Linz are fre-
quent executive-legislative stalemates and the rigidity of presidential
terms of office. Stalemates are likely to occur because president and
legislature can both claim the democratic legitimacy of being popu-
larly elected, but the president and the majority of the legislature may
belong to different parties or may have divergent preferences even if
they belong to the same party. The rigidity inherent in presidentialism
is that presidents are elected for fixed periods that often cannot be ex-
tended because of term limits, and that cannot easily be shortened even
if the president proves to be incompetent, becomes seriously ill, or is
beset by scandals of various kinds. Parliamentary systems, with their
provisions for votes of confidence, snap elections, and so on, do not
suffer from this problem.
Semi-presidential systems represent only a slight improvement over
pure presidentialism. Although there can be considerable power shar-
ing among president, prime minister, and cabinet, the zero-sum nature
of presidential elections remains. Semi-presidential systems actually
make it possible for the president to be even more powerful than in most
pure presidential systems. In France, the best-known example of semi-
presidentialism, the president usually exercises predominant power; the
196274 and 198186 periods have even been called hyperpresiden-
tial phases.19 The stalemate problem is partly solved in semi-presidential
systems by making it possible for the system to shift from a mainly
presidential to a mainly parliamentary mode if the president loses the
support of his party or governing coalition in the legislature. In the
Latin American presidential democracies, constitutional reformers have
often advocated semi-presidential instead of parliamentary government,
but only for reasons of convenience: A change to parliamentarism seems
too big a step in countries with strong presidentialist traditions. While
such traditional and sentimental constraints may have to be taken into
account in constitutional negotiations, parliamentary government should
be the general guideline for constitution writers in divided societies.
There is a strong scholarly consensus in favor of parliamentary gov-
ernment. In the extensive literature on this subject, the relatively few
critics have questioned only parts of the pro-parliamentary consensus.
Pointing to the case of U.S. presidentialism, for instance, they have
noted that the stalemate problem has not been as serious as Linz and
Arend Lijphart 103
others have allegedwithout, however, challenging the validity of the

other charges against presidential government.20
4) Power sharing in the executive. The collegial cabinets in parliamen-

tary systems facilitate the formation of power-sharing executives, but
they do not by themselves guarantee that power sharing will be insti-
tuted. Belgium and South Africa exemplify the two principal methods of
doing so. In Belgium, the constitution stipulates that the cabinet must
comprise equal numbers of Dutch-speakers and French-speakers. The
disadvantage of this approach is that it requires specifying the groups
entitled to a share in power, and hence the same discriminatory choices
inherent in electoral systems with guaranteed representation for particu-
lar minorities. In South Africa there was so much disagreement and
controversy about racial and ethnic classifications that these could not
be used as a basis for arranging executive power sharing in the 1994
interim constitution. Instead, power sharing was mandated in terms of
political parties: Any party, ethnic or not, with a minimum of 5 percent
of the seats in parliament was granted the right to participate in the
cabinet on a proportional basis.21 For similar situations in other coun-
tries, the South African solution provides an attractive model. But when
there are no fundamental disagreements about specifying the ethnic
groups entitled to a share of cabinet power, the Belgian model has two
important advantages. First, it allows for power sharing without mandat-
ing a grand coalition of all significant parties and therefore without
eliminating significant partisan opposition in parliament. Second, it al-
lows for slight deviation from strictly proportional power sharing by
giving some overrepresentation to the smaller groups, which may be
desirable in countries where an ethnic majority faces one or more ethnic
minority groups.
5) Cabinet stability. Constitution writers may worry about one potential

problem of parliamentary systems: The fact that cabinets depend on ma-
jority support in parliament and can be dismissed by parliamentary votes
of no-confidence may lead to cabinet instabilityand, as a result, re-
gime instability. The weight of this problem should not be overestimated;
the vast majority of stable democracies have parliamentary rather than
presidential or semi-presidential forms of government.22 Moreover, the
position of cabinets vis-`a-vis legislatures can be strengthened by consti-
tutional provisions designed to this effect. One such provision is the
constructive vote of no confidence, adopted in the 1949 constitution of
West Germany, which stipulates that the prime minister (chancellor) can
be dismissed by parliament only if a new prime minister is elected simul-
taneously. This eliminates the risk of a cabinet being voted out of office
by a negative legislative majority that is unable to form an alternative
cabinet. Spain and Papua New Guinea have adopted similar requirements
for a constructive vote of no confidence. The disadvantage of this provi-

sion is that it may create an executive that cannot be dismissed by
parliament but does not have a parliamentary majority to pass its legisla-
tive programthe same kind of stalemate that plagues presidential
systems. A suggested solution to this potential problem was included in
the 1958 constitution of the French Fifth Republic in the form of a provi-
sion that the cabinet has the right to make its legislative proposals matters
of confidence, and these proposals are adopted automatically unless an
absolute majority of the legislature votes to dismiss the cabinet. No con-
stitution has yet tried to combine the German and French rules, but such
a combination could undoubtedly give strong protection to cabinets and
their legislative effectivenesswithout depriving the parliamentary
majority of its fundamental right to dismiss the cabinet and replace it
with a new one in which parliament has greater confidence.
6) Selecting the head of state. In parliamentary systems, the prime min-

ister usually serves only as head of government, while a constitutional
monarch or a mainly ceremonial president occupies the position of head
of state. Assuming that no monarch is available, constitution writers
need to decide how the president should be chosen. My advice is two-
fold: to make sure that the presidency will be a primarily ceremonial
office with very limited political power, and not to elect the president by
popular vote. Popular election provides democratic legitimacy and, es-
pecially in combination with more than minimal powers specified in the
constitution, can tempt presidents to become active political partici-
pantspotentially transforming the parliamentary system into a semi-
presidential one. The preferable alternative is election by parliament.
A particularly attractive model was the constitutional amendment
proposed as part of changing the Australian parliamentary system from
a monarchy to a republic, which specified that the new president would
be appointed on the joint nomination of the prime minister and the
leader of the opposition, and confirmed by a two-thirds majority of a
joint session of the two houses of parliament. The idea behind the two-
thirds rule was to encourage the selection of a president who would be
nonpartisan and nonpolitical. (Australian voters defeated the entire pro-
posal in a 1999 referendum mainly because a majority of the
pro-republicans stronglyand unwiselypreferred the popular elec-
tion of the president.) In my opinion, the best solution is the South
African system of not having a separate head of state at all: There the
president is in fact mainly a prime minister, subject to parliamentary
confidence, who simultaneously serves as head of state.
7) Federalism and decentralization. For divided societies with geo-

graphically concentrated communal groups, a federal system is
undoubtedly an excellent way to provide autonomy for these groups.
Arend Lijphart 105
My specific recommendation regards the second (federal) legislative

chamber that is usually provided for in federal systems. This is often a
politically powerful chamber in which less populous units of the federa-
tion are overrepresented (consider, for example, the United States Senate,
which gives two seats to tiny Wyoming as well as gigantic California).
For parliamentary systems, two legislative chambers with equal, or sub-
stantially equal, powers and different compositions is not a workable
arrangement: It makes too difficult the forming of cabinets that have the
confidence of both chambers, as the 1975 Australian constitutional cri-
sis showed: The opposition-controlled Senate refused to pass the budget
in an attempt to force the cabinets resignation, although the cabinet
continued to have the solid backing of the House of Representatives.
Moreover, a high degree of smaller-unit overrepresentation in the fed-
eral chamber violates the democratic principle of one person, one vote.
In this respect, the German and Indian federal models are more attractive
than the American, Swiss, and Australian ones.
Generally, it is advisable that the federation be relatively decentral-
ized and that its component units (states or provinces) be relatively
smallboth to increase the prospects that each unit will be relatively
homogeneous and to avoid dominance by large states on the federal
level. Beyond this, a great many decisions need to be made regarding
details that will vary from country to country (such as exactly where the
state boundaries should be drawn). Experts have no clear advice to offer
on how much decentralization is desirable within the federation, and
there is no consensus among them as to whether the American, Cana-
dian, Indian, Australian, German, Swiss, or Austrian model is most worthy
of being emulated.
8) Nonterritorial autonomy. In divided societies where the communal

groups are not geographically concentrated, autonomy can also be ar-
ranged on a nonterritorial basis. Where there are significant religious
divisions, for example, the different religious groups are often intent on
maintaining control of their own schools. A solution that has worked
well in India, Belgium, and the Netherlands is to provide educational
autonomy by giving equal state financial support to all schools, public
and private, as long as basic educational standards are met. While this
goes against the principle of separating church and state, it allows for
the state to be completely neutral in matters of education.
9) Power sharing beyond the cabinet and parliament. In divided soci-

eties, broad representation of all communal groups is essential not only
in cabinets and parliaments, but also in the civil service, judiciary,
police, and military. This aim can be achieved by instituting ethnic or
religious quotas, but these do not necessarily have to be rigid. For ex-
ample, instead of mandating that a particular group be given exactly 20
percent representation, a more flexible rule could specify a target of 15

to 25 percent. I have found, however, that such quotas are often unnec-
essary; it is sufficient to have an explicit constitutional provision in
favor of the general objective of broad representation and to rely on the
power-sharing cabinet and the proportionally constituted parliament
for the practical implementation of this goal.
Other Issues
As far as several other potentially contentious issues are concerned,
my advice would be to start out with the modal patterns found in the
worlds established democracies, such as a two-thirds majority require-
ment for amending the constitution (with possibly a higher threshold
for amending minority rights and autonomy), a size of the lower house
of the legislature that is approximately the cube root of the countrys
population size23 (which means that a country with about 25 million
inhabitants, such as Iraq, should have a lower house of about 140
representatives), and legislative terms of four years.
While approval by referendum can provide the necessary democratic
legitimacy for a newly drafted constitution, I recommend a constitu-
tional provision to limit the number of referenda. One main form of
referendum entails the right to draft legislation and constitutional amend-
ments by popular initiative and to force a direct popular vote on such
propositions. This is a blunt majoritarian instrument that may well be
used against minorities. On the other hand, the Swiss example has shown
that a referendum called by a small minority of voters to challenge a law
passed by the majority of the elected representatives may have the desir-
able effect of boosting power sharing. Even if the effort fails, it forces the
majority to pay the cost of a referendum campaign; hence the potential
calling of a referendum by a minority is a strong stimulus for the major-
ity to be heedful of minority views. Nevertheless, my recommendation is
for extreme caution with regard to referenda, and the fact that frequent
referenda occur in only three democraciesthe United States, Switzer-
land, and, especially since about 1980, Italyunderscores this guideline.
Constitution writers will have to resolve many other issues that I
have not mentioned, and on which I do not have specific recommenda-
tions: for example, the protection of civil rights, whether to set up a
special constitutional court, and how to make a constitutional or su-
preme court a forceful protector of the constitution and of civil rights
without making it too interventionist and intrusive. And as constitu-
tion writers face the difficult and time-consuming task of resolving
these issues, it is all the more important that experts not burden or
distract them with lengthy discussions on the relative advantages and
disadvantages of flawed alternatives like presidentialism and non-PR
systems.
Arend Lijphart 107
I am not arguing that constitution writers should adopt all my recom-

mendations without any examination of various alternatives. I recognize
that the interests and agendas of particular parties and politicians may
make them consider other alternatives, that a countrys history and tradi-
tions will influence those who must draft its basic law, and that professional
advice is almost alwaysand very wiselysought from more than one
constitutional expert. Even so, I would contend that my recommenda-
tions are not merely based on my own preferences, but on a strong
scholarly consensus and solid empirical evidence, and that at the very
least they should form a starting point in constitutional negotiations.
NOTES
I am grateful to the Bellagio Study and Conference Center of the Rockefeller

Foundation for offering me the opportunity to work on this project while I was a
resident of the Center in MayJune 2003, and to Roberto Belloni, Torbjrn Bergman,
Joseph H. Brooks, Florian Bieber, Jorgen Elklit, Svante Ersson, John McGarry,
Brendan OLeary, Mogens N. Pedersen, Hugh B. Price, and Timothy D. Sisk for
their valuable advice. Some of the ideas presented in this article were first pub-
lished in my chapter The Wave of Power-Sharing Democracy, in Andrew
Reynolds, ed., The Architecture of Democracy: Constitutional Design, Conflict
Management, and Democracy (Oxford: Oxford University Press, 2002), 3754;
and in Democracy in the Twenty-First Century: Can We Be Optimistic? Uhlenbeck
Lecture No. 18 (Wassenaar: Netherlands Institute for Advanced Study, 2000).
1. The secondary characteristics are proportionality, especially in legislative

elections (in order to ensure a broadly representative legislaturesimilar to the
aim of effecting a broadly constituted executive) and a minority veto on the most
vital issues that affect the rights and autonomy of minorities.
2. Some of these scholars are Dirk Berg-Schlosser, William T. Bluhm, Laurence

J. Boulle, Hans Daalder, Edward Dew, Robert H. Dix, Alan Dowty, Jonathan
Fraenkel, Hermann Giliomee, Theodor Hanf, Jonathan Hartlyn, Martin O. Heisler,
Luc Huyse, Thomas A. Koelble, Gerhard Lehmbruch, Franz Lehner, W. Arthur
Lewis, Val R. Lorwin, Diane K. Mauzy, John McGarry, Kenneth D. McRae, Antoine
N. Messarra, R.S. Milne, S.J.R. Noel, Eric A. Nordlinger, Brendan OLeary, G.
Bingham Powell, Jr., Andrew Reynolds, F. van Zyl Slabbert, Jrg Steiner, Albert J.
Venter, Karl von Vorys, David Welsh, and Steven B. Wolinetz. Their most impor-
tant writings on the subject (if published before the mid-1980s) can be found in the
bibliography of Arend Lijphart, Power-Sharing in South Africa (Berkeley, Calif.:
Institute of International Studies, University of California, 1985), 13771.
3. Ted Robert Gurr, Minorities at Risk: A Global View of Ethnopolitical Con-

flicts (Washington, D.C.: U.S. Institute of Peace Press, 1993), 292, italics added.
4. I have responded to these criticisms at length elsewhere. See especially Lijphart,

The Wave of Power-Sharing Democracy, in Andrew Reynolds, ed., The Archi-
tecture of Democracy: Constitutional Design, Conflict Management, and Democracy
(Oxford: Oxford University Press, 2002), 4047; and Lijphart, Power-Sharing in
South Africa, 83117.
5. Brian Barry, The Consociational Model and Its Dangers, European Jour-
nal of Political Research 3 (December 1975): 406.
6. Donald L. Horowitz, A Democratic South Africa? Constitutional Engineer-

ing in a Divided Society (Berkeley, Calif.: University of California Press, 1991),

188203; and Electoral Systems: A Primer for Decision Makers, Journal of
Democracy 14 (October 2003): 12223. In alternative-vote systems, voters are
asked to rank order the candidates. If a candidate receives an absolute majority of
first preferences, he or she is elected; if not, the weakest candidate is eliminated,
and the ballots are redistributed according to second preferences. This process
continues until one of the candidates receives a majority of the votes.
7. For a detailed critique, see Lijphart, The Alternative Vote: A Realistic Alter-
native for South Africa? Politikon 18 (June 1991): 9101; and Lijphart,
Multiethnic Democracy, in Seymour Martin Lipset, ed., The Encyclopedia of
Democracy (Washington, D.C.: Congressional Quarterly, 1995), 86364.
8. The alternative vote was also used for the 1982 and 1988 presidential elec-
tions in Sri Lanka and for the 2000 presidential elections in the Republika Srpska
in Bosnia. Nigeria has used a similar system favored by Horowitz (requiring a
plurality plus at least 25 percent of the votes in at least two-thirds of the states for
victory) for its presidential elections. The third and sixth guidelines that I describe
in the present essay recommend a parliamentary system without a popularly elected
presidentand therefore no direct presidential elections at all.
9. Benjamin Reilly has come to Horowitzs defense, but only with significant
qualifications; for instance, Reilly dissents from Horowitzs advocacy of the alter-
native vote for the key case of South Africa. See Reilly, Democracy in Divided
Societies: Electoral Engineering for Conflict Management (Cambridge: Cambridge
University Press, 2001). Andreas Wimmer advocates the alternative vote for Iraq
in Democracy and Ethno-Religious Conflict in Iraq, Survival 45 (Winter 2003
2004): 11134.
10. Donald L. Horowitz, Constitutional Design: Proposals versus Processes,

in Andrew Reynolds, ed., The Architecture of Democracy, 25.
11. In contrast with plurality, the alternative vote (instant runoff) ensures that
the winning candidate has been elected by a majority of the voters, and it does so
more accurately than the majority-runoff method and without the need for two
rounds of voting.
12. Larry Diamond, Developing Democracy: Toward Consolidation (Baltimore:

Johns Hopkins University Press, 1999), 104.
13. All three of these systems use multimember election districts. The cumula-
tive vote resembles multi-member district plurality in which each voter has as
many votes as there are seats in a district, but, unlike plurality, the voter is allowed
to cumulate his or her vote on one or a few of the candidates. In limited-vote
systems, voters have fewer votes than the number of district seats. The single
nontransferable vote is a special case of the limited vote in which the number of
votes cast by each voter is reduced to one.
14. See Matthew Soberg Shugart and Martin P. Wattenberg, eds., Mixed-Mem-
ber Electoral Systems: The Best of Both Worlds? (Oxford: Oxford University Press,
2001).
15. This estimate is based on the T=75%(M+1) equationin which T is the

effective threshold and M the number of representatives elected in a district
suggested by Rein Taagepera; see Arend Lijphart, Electoral Systems, in Seymour
Martin Lipset, ed., Encyclopedia of Democracy, 417. There is considerable varia-
tion around the average of 8 representatives per district, but 9 of the 17 districts are
very close to this average, with between 6 and 9 seats. The open-list rules are very
complex and, in my opinion, make the lists too open. In addition to the 175 seats
described here, Greenland and the Faeroe Islands elect two representatives each. I
Arend Lijphart 109
should also point out that my recommendation of the Danish model entails a bit of
a paradox: It is a system that is very suitable for ethnically and religiously divided
countries, although Denmark itself happens to be one of the most homogeneous
countries in the world.
16. Parties below the 2 percent threshold may still benefit from the compensa-
tory seats if certain other requirements are met, such as winning at least one district
seat.
17. Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make a

Difference? in Juan J. Linz and Arturo Valenzuela, eds., The Failure of Presiden-
tial Democracy (Baltimore: Johns Hopkins University Press, 1994), 18.
18. Seymour Martin Lipset, The Indispensability of Political Parties, Journal

of Democracy 11 (January 2000): 4855; E.E. Schattschneider, Party Government
(New York: Rinehart, 1942), 1.
19. John T.S. Keeler and Martin A. Schain, Institutions, Political Poker, and
Regime Evolution in France, in Kurt von Mettenheim, ed., Presidential Institu-
tions and Democratic Politics: Comparing Regional and National Contexts
(Baltimore: Johns Hopkins University Press, 1997), 9597. Horowitz favors a
president elected by the alternative vote or a similar vote-pooling method, but in
other respects his president does not differ from presidents in pure presidential
systems; see his A Democratic South Africa?, 20514.
20. Scholars have also indicated methods to minimize the problem of presiden-
tial-legislative deadlockfor instance, by holding presidential and legislative
elections concurrently and electing the president by plurality instead of the more
usual majority-runoff method. Such measures may indeed be able to ameliorate the
problem to some extent, but cannot solve it entirely. See Matthew Soberg Shugart
and John M. Carey, Presidents and Assemblies: Constitutional Design and Elec-
toral Dynamics (Cambridge: Cambridge University Press, 1992); and Mark P.
Jones, Electoral Laws and the Survival of Presidential Democracies (Notre Dame:
University of Notre Dame Press, 1995).
21. The 1998 Good Friday Agreement provides for a similar power-sharing
executive for Northern Ireland.
22. In my comparative study of the worlds stable democracies, defined as

countries that were continuously democratic from 1977 to 1996 (and had popula-
tions greater than 250,000), 30 of the 36 stable democracies had parliamentary
systems. See Lijphart, Patterns of Democracy: Government Forms and Perfor-
mance in Thirty-Six Countries (New Haven: Yale University Press, 1999).
23. This pattern was discovered by Rein Taagepera; see his The Size of Na-
tional Assemblies, Social Science Research 1 (December 1972): 38540.
Revisiting
Free and Fair Elections
An international round table
on election standards
organized by the Inter-Parliamentary Union,
Geneva, November 2004
(Ed. Michael D. Boda)

Democratic Principles and Judging
Free and Fair *
Richard S. Katz
Guy Goodwin-Gills (1994) Free and Fair Elections : International Law
and Practice was a path-breaking inquiry into a crucial question. The
book was significant in two respects. On the one hand, it was a
renewal of the attempt (e.g., Mackenzie, 1958) to distill from the
practices of the established democracies those standards that are
essential to free and fair elections. On the other hand, Goodwin-Gill
grounded his analysis specifically in international law, suggesting that
the international community would be entitled to take an interest in
the adherence of individual states to the standards.
As with all path-breaking studies, experience has shown that Free and
Fair Elections provides only partial answers to some of its questions, and
indeed raises additional questions whose importance only became
apparent later. Other participants addressed some of these. I address
two questions here. The first is whether democracy has a sufficiently
clear and unambiguous definition that free and fair elections can be
assessed on the basis of a uniform set of standards, or whether,
alternatively, there are still many competing understandings of
democracy, each with its own twist on the meaning of free and fair.
The second is whether, or more properly to what extent and how, the
two standards of free-ness and fair-ness are compatible.
Democracy and elections

Democracy is a messy concept, and there has been endless academic
debate concerning its true meaning. The definition of democracy is
not just a philosophical question, however, but also a question with
profound implications in the world of practical politics. Different
conceptions of democracy justify different institutional arrangements
and different standards for evaluating their performance and
ultimately differing distributions of authority. Who wins may be
determined by the rules and practices in place, and those, in turn,
depend at least in part on which understanding of democracy is
privileged.
* This paper was presented initially in November 2004 as part of the

proceedings of Free and Fair Elections, Ten Years On : An International Round
Table on Election Standards. The author wishes to thank those who offered
comment on its contents, particularly David Beetham who acted as
respondent.
18 Democratic Principles and Judging Free and Fair
Although in his title Goodwin-Gill only mentions free and fair as

criteria, legitimate elections must also be effective. But effective in
doing what? Answering this question requires that five big questions
be addressed.
Scope of Democracy
Most commonly, democracy is equated with the choice of government
through competitive elections. In Joseph Schumpeters (1962 : 269)
words, for example, democracy is that institutional arrangement for
arriving at political decisions in which individuals acquire the power to
decide by means of a competitive struggle for the peoples vote. In
this view, a democracy is neither more nor less than a political system
in which political leaders are chosen in reasonably free competition
among political parties.
In contrast to this, there is a tradition that identifies politics, and

thus democracy as a form of politics, with (in Abbie Hoffmans
words) the way you live your life. In this view, one would not talk
about a democratic government, but rather about a democratic
society, because to restrict attention to the method through which
political decision makers are chosen is totally to strip democracy of
its core meaning.
Choice of government or choice of representatives

The second big question is whether an election is properly
understood as the choice of a government or as a choice of
representatives. One key point, reflected in the grammar of the
preceding sentence, is that a government is singular, whereas there
may be many representatives. On one hand, this means that some
standards that are appropriate for governments might better be
applied to the parliament as a whole rather than to the individual
parties that make it up. On the other hand, because choice of a
government implies choice against some alternative, some forms of
inclusiveness that might be appropriate for parliaments would be
inappropriate for governments.
A second key point is that governments are expected to be able to

act both effectively (when the government makes a decision,
something happens) and coherently (the governments decisions, at
least while one government remains in office, are complementary
rather than contradictory). Representative assemblies, however,
Richard S. Katz 19
often are expected to be expressive rather than effective and to

reflect diversity rather than coherence.
Parties or candidates
Third, are elections contests among parties or among candidates, or
posed more realistically, are voters choosing among parties, each of
which has particular individuals as its standard bearers, or rather are
they choosing among individual candidates, each (or most) of whom
are associated with political parties ? Parliamentary democracy and
proportional representation (PR) electoral systems in modern states
are predicated not only on the idea that parties are cohesive units
but also on the idea that it is those cohesive units for which electors
vote and which therefore have a democratic mandate from the
voters. At the same time, many constitutions emphasize the personal
responsibility of individual members of parliament, either to their
own constituents or to their own consciences.
The mirror image of the question of whether parties or candidates

are the objects of voter choice is the question of responsibility.
Adapting the language of cabinet government, are parties to be
held collectively responsible, with each candidate of a party expected
and expecting to share in the blame for missteps taken by the party
or its leaders even if s/he personally opposed those steps, or is each
candidate to be individually responsible to his/her own constituents
independently of their views of the party as a whole ? As with
collective and individual responsibility of cabinet ministers, the
answer clearly is both, but in what mix?
Self-protection or direction
Fourth, is the objective of democracy to allow the citizens to protect
themselves by reactively punishing rulers of whose policies, or results,
they disapprove or is it to allow the citizens to rule themselves, by
affirmatively deciding the policies to be pursued?
One major strain in democratic theory suggests that the people

should decide what is to be done : that democracy means the will of
the people is to be put into effect. There is, of course, great
disagreement concerning how one can either define or identify the
will of the people, ranging in numerical terms from the unanimity of
Rousseaus volont generale to simple majority rule. Nonetheless, in
this view government is seen as an instrument of the people, taking
positive direction from them.
Theories that stress democracy as a means of self-protection begin

with recognition that although effective government is necessary to
the protection of individual rights, it may also be among the most
serious threats to those rights. As Macpherson (1977 : 34) wrote
describing what he called protective democracy, it follows from the
grand governing principle of human nature [that] every government
would be rapacious unless it were made in its own interest not to be
so. While we might argue about the degree to which liberal civil
rights (free speech, free press, free assembly) or a free market
economy are prerequisites for the inauguration or sustainability of
democracy, they clearly are not sufficient conditions, and hence a
liberal free market economy is not a synonym for liberal democracy,
let alone democracy tout court. For those who take the democracy
as self-protection view, one point of adding democracy to the
phrase liberal democracy would be a recognition that ordinary
people need some protection against the natural rapaciousness of
their leaders.
Even if governments are the unproblematic agents of the people,

however, that does not guarantee that they will be benevolent.
Assuming that the will of the people can be expressed by less than
unanimous consent, what is to protect the rights of the minority from
being trampled by the majority?
David Beetham, in response to the round table presentation of this

paper, argued that this dichotomy is overblown : that any democratic
system would prohibit the majority from denying fundamental
political rights to a minority, and recognizing that the existence of an
identifiable minority that is permanently excluded from executive
office would also be unacceptable. In simple, black and white terms,
he is correct, of course. The problem arises when the exploitation of
the minority is not so stark : they are not barred from competing, but
severely handicapped; they are not expropriated, but more heavily
taxed or less adequately served; they are not permanently excluded
from office because of race or gender, but always lose. In these cases,
it is not adequate to point to obvious democratic norms, and yet it is
also not obvious why those who are permanently on the short end of
the will of the people would unproblematically accept the legitimacy
of democracy defined simply as government in accord with the will of
the people.
When this problem is highlighted, the emphasis in the phrase

liberal democracy shifts ; instead of democracy (in particular
Richard S. Katz 21
elections) being a means of enforcing liberalism, liberalism becomes

a rationale for limiting the simple translation of the will of the
people into government action which in terms of the simple will of
the people definition would mean it becomes a rationale for limiting
democracy itself. The classic example here is the Madisonian concern
with majority faction, and the set of institutional prescriptions to
which that concern leads.
Role of citizens
The fifth big question concerns the primary role of citizens in the
context of an election campaign. Are they primarily to be judges
among the contestants or are they to be active participants and
partisans ?
In one view, democracy simply means popular choice among

alternatives that, while perhaps constructed in response to the
perceived or expressed needs, interest, or desires of the citizens, are
formulated by political (generally meaning party) elites. Provided the
range of options from which the choice is made is sufficiently broad,
this view sees electoral judgment, without other substantial
participation, as adequate to effective democracy.
The alternative view sees active involvement in the actual doing of

politics as an essential element of democratic governance. In part, the
contention is that only active involvement by the citizens in the
formulation of party programs, the selection of candidates, etc., will
ensure that the range of choices offered will reflect popular rather than
elite interests and concerns; in part, the contention is that comment and
criticism of party programs from civil society (e.g., interest
organizations, NGOs, etc.) is necessary if the citizens are to be
adequately informed before they make their judgment. More
fundamentally, however, it is informed by the idea that democracy
means self-government and not just government in the publics interest.
Varieties of democracy
In Democracy and Elections (Katz, 1997), I identified a large number
of models of democracy with profoundly different institutional
prescriptions derived from attention to four fundamental
democratic values, with an implicit fifth value, equality (a concept as
complex as democracy itself), assumed without detailed analysis. The
first two of the values considered explicitly were popular sovereignty
(the idea that the will of the people should determine government
personnel and policy) and liberalism (the idea that groups need not
just formal rights but practical power to protect themselves from
abuses by their governors).1 In addition to these two values, I
considered participation (the idea that participation in self-
government is an essential prerequisite for full human development),
and community (the idea that democracy both reflects and fosters a
single demos that both has, and perceives itself to have, a
commonality of interest).
The reason why I suggest many varieties of democracy, and indeed

the reason why I introduce an intermediate step between defining
democracy and evaluating institutions, is that the institutional
prescription appropriate to each of the democratic values depends not
only on the value itself, but on the structure of the political space2
and the structure and nature of social and other divisions in the society
in question as well. Combining some categories in the original analysis
(and omitting a few others as of little relevance here), the significant
varieties of democracy are summarized in Table 1. Each should be
regarded as an ideal type, based on stylized assumptions, but, like all
ideal types, they serve as points of reference for assessing the real
world.
Free and fair : Alternative standards

What are the implications of these differing models for democracy for
the standards by which the freeness and fairness of elections should
be judged ? Some standards are universal : ballots must be counted
honestly; voters must be able to cast their ballots free of intimidation
or fear of reprisal; rules must be enforced in a neutral fashion; there
must be a mechanism for the non-arbitrary resolution of disputes.3
While no real election is likely to be perfect with regard to these
standards, there is not likely to be any question either as to their
importance or as to which end of the scale is good. For many of the
other criteria discussed by Goodwin-Gill, however, both the
importance of the criterion and in at least some cases even the
direction (is more or less better?) depends on the conception of
democracy about which one is thinking.
Proportionality of representation
One of the essential considerations that Goodwin-Gill (1994 : 28) cites
is that an election primarily must guarantee representation at the
national level of the countrys political forces, and reproduce in
Richard S. Katz 23
Parliament as faithful an image as possible of their relative strength.

If the primary purpose of an election is to produce a representative
assembly the members of which will be able to form coalitions that
might be justified as being equivalent to the coalitions the people
might form if Athenian style government by an assembly of the
citizens were possible (e.g., legislative popular sovereignty), then
proportionality and the multiparty system that PR is said to facilitate
are quite important. Similarly, if legislative seats are seen as public
goods that must be allocated proportionately among the pillars of
society (e.g., veto-group liberalism), a proportional electoral system is
again important.
If emphasis is instead placed on the other essential consideration

that Goodwin-Gill cites, the designation of a cohesive government
responsible for conducting a national policy, then proportionality is at
best of secondary importance, and from the perspective of several
models of democracy likely to be positively pernicious. On the one
hand, if proportionality facilitates a multiparty system, then it is clearly
undesirable from the perspective of theories (e.g., binary or Downsian
popular sovereignty) that derive their power from the assumption of
two party competition. If multiparty politics limits the heterogeneity
of individual party coalitions, then it would be undesirable from the
perspective of pluralist liberalism as well. On the other hand, from the
perspective of binary or Downsian popular sovereignty, what counts is
that the right party (the one with a majority of the popular votes) be
in effective control of the government, which means that the
tendency of non-proportional electoral systems to exaggerate the
support of the winning party in the translation of votes into
parliamentary seats would be an asset rather than a liability. Likewise,
from the liberal perspective, if the point of elections is to allow the
voters to reward and punish governments, the magnification of vote
swings in their translation into seat swings would simply be increasing
the power of the electoral weapon.
Stability and coherence of government

Governments issuing from parliaments elected by PR and coalition
governments on average have significantly shorter lives than single
party governments issuing from parliaments elected by First Past the
Post (FPTP) systems. Is this a problem?
From the perspective of theories that assume elections are about

choosing governments, the failure of the government chosen to last
Table 1 : Models of democracy
24
Model Assumptions Institutional Prescription

of Democracy
Binary Popular 1. All issues cluster into two complexes, so that choice is 1. A two-party system, with each party representing one of
Sovereignty between this and that. the two complexes of opinion.
2. The choice of the majority is the will of the people. 2. An electoral system (FPTP) that will support two-party
politics and provide reasonable assurance that the party
with the most votes will control the government.
Downsian Popular 1. All issues can be summarized in terms of a single dimension. 1. A two-party system, with each party free
Sovereignty 2. The first preference of the median voter along the assumed opportunistically to alter its policy position along the issue
single dimension of politics (the Condorcet choice) is the will dimension.
of the people. 2. An electoral system (FPTP) that will support two-party
politics and provide reasonable assurance that the party
with the most votes will control the government.
Legislative 1. The issue space is multidimensional. 1. A multiparty system, with each party representing a
Popular 2. While there is no Condorcet choice, the will of the people different combination of policy positions.
Sovereignty can be approximated through the formation of a parliamentary 2. An electoral system (PR) that will accurately reproduce
coalition representing a majority. in parliament the distribution of opinions found
in the electorate.
Majoritarian 1. Society is basically homogeneous, with no politically relevant 1. A two-party system, with each party representing an
Liberalism and stable subgroups. alternative team of leaders prepared to assume the
2. Majority rule is adequate to protect against elite tyranny, direction of government.
and majority tyranny is not a concern. 2. An electoral system (FPTP) that will support two-party
politics, and provide citizens with an effective opportunity
both to dismiss the party an power and to dismiss individual
politicians who are perceived to be abusing their positions.
Democratic Principles and Judging Free and Fair
Pluralist 1. Society is made up of stable, but cross-cutting, groups. 1. A party system in which each party (or at least one party
Liberalism 2. The problem of majority tyranny can be mitigated through in any potential coalition of parties) is to a significant
multiple veto points, privileging different combinations of degree dependent on the support of every significant
political resources. That at least one of these veto-points is group in society.
majoritarian is adequate protection against elite tyranny. 2. An electoral system (e.g., FPTP) that encourages parties
Richard S. Katz
to build broad coalitions rather than to mobilize a narrow

constituency.
3. An institutional system that makes it difficult for a
majority to gain control of all of the institutions
of government (e.g.., separation of powers, federalism, etc.)
Veto-Group 1. Society is divided (pillarized) into stable and non-overlapping 1. A party system in which each segment of society is
Liberalism groups. represented by at least one party, but preferably by exactly
2. Majority tyranny can be avoided only by giving each politically one party.
relevant group unilateral veto power. 2. An electoral or other device to make the leadership
of each segment responsible to the members of that
segment.
3. An institutional system (e.g., government by grand
coalition) that will afford each segment of society veto
power over decisions that it perceives to be excessively
threatening.
Participationist 1. Full human development requires taking active responsibility 1. Structures that afford maximum opportunities for direct
and in government. citizen involvement in decision-making.
Communitarian 2. Active involvement in the collective enterprise of governing 2. Institutional arrangements that move decisions to the
Democracy will foster the development of community. most local (i.e., smallest) units possible.
3. Structures that maximise political talk.
25
its full term is a clear failure. But this clearly is reflective of the logic
only of two-party popular sovereignty (or of presidentialism). With
legislative popular sovereignty, the purpose of an election is to choose
representatives who will choose the government; and because those
representatives, unlike the voters, are in more or less continuous
session, they can change the coalition in power without challenging
the underlying democratic legitimacy of the system.
If elections are to give the people through their representatives

the ability to limit their government, stability may be evidence of
failure rather than success. While the ideal of many 19th century
liberals that annual elections would be desirable to allow the voters
to [divest] of their power all unfit representatives before they have
had time to produce any lasting mischief, (Bentham, 1962 : 561) has
been generally rejected on practical grounds, the idea that a
government should never be too securely in office is the essence of
majoritarian liberal democracy, and only slightly less central to
pluralist liberalism.
Universality of suffrage and voter turnout

Clearly the first thing to be said about universal suffrage is that no one
either believes in it or practices it. All countries have minimum age
requirements. Many require citizenship or at least a lengthy period of
residence. Some citizens may be disqualified on account of mental
incompetence or criminal convictions. In Kuwait and Saudi Arabia,
women do not have the right to vote.*
The Kuwaiti example is illustrative of an important point. The

prototypical democracy of Athens was democratic only with respect
to a quite narrowly defined segment of the population. Exclusions of
women, members of various ethnic groups or religions, or people
without extremely long residence or property in the area have a long
history in the established democracies. That we now regard these as
illegitimate does not alter the fact that both their imposition and
their elimination reflect cultural biases concerning the proper nature
of a political community. That the international community may
regard itself as justified in imposing these modern values on cultures
that we regard as less advanced does not make them less the product
of culture.4
* Editors note : In May 2005, the Kuwaiti parliament approved constitutional

amendments to give women full political rights.
Richard S. Katz 27
Beyond this, there may be other reasons why less than universal
suffrage may be democratically acceptable. If elections are part of a
process of rational decision-making rather than mere expressions of
opinion, for example, one might legitimately limit the participation of
the incompetent. At the trivial (except in numerical terms) level, this
is the justification for denying the vote to children. The problem with
more substantive competency requirements (or toleration of
competency related conditions that impose a substantial burden on
some individuals) when applied to adults, however, is that the
incompetent may constitute an interest of their own, or be a
significant part of some interest. Particularly from the liberal
perspective, indeed, the incompetent may represent an interest that
is particularly in need of protection.
Low turnout often is interpreted as either indicative or causative of

low legitimacy of the outcome. Nonetheless, some efforts to increase
turnout may be a cure that is worse than the disease. On the one hand,
lessening the barriers to voting (easing registration procedures,
allowing postal voting, etc.) may also facilitate fraud. On the other
hand, they may exaggerate rather than mitigate biases in the
composition of the active electorate. (On both these problems, see
Katz, 2004.)
Is high turnout necessarily to be regarded as good? From the

perspective of participationist or communitarian models, true
citizenship is an achieved status : Citizens are neighbors bound together
neither by blood nor by contract but by their common concerns and
common participation in the search for common solutions to common
conflicts. (Barber, 1984 : 219) While participation in an election may
help to integrate individuals into a political community, the votes of
excessive numbers of individuals who are not committed to the
community may instead undermine the democratic legitimacy of the
election in the eyes of those who do feel such a commitment.
Constituency delimitation and equality of votes

One of the great mantras of the late 20th century became one-person,
one-vote, one-value. The first part (one-person, one-vote) is
unproblematic in theory, although sometimes more difficult to realize
in practice. The second part (one-vote, one-value), however, is not at
all straight-forward unless the electoral system is PR with large
districts. The greatest problems, however, arise in the context of
single-member districts.
It is often assumed that having each district with as near to the same
population (whether of residents, or citizens, or voters) as possible is
both a necessary and a sufficient condition for equality of influence.
This equality, however, may be illusory. This is illustrated in Figure 1,
which shows a hypothetical territory with 15,000 voters divided into
15 perfectly square and exactly equipopulous districts. If the numbers
in each square are the votes received by one of two parties competing,
then with exactly 7500 votes to its opponents 7500, that party will win
seven of the 15 seats. If it loses 60 votes in each district, it will win only
two seats with a total of 6600 votes, while if it gains 60 votes in each
district it will win ten seats with 8400 votes overall. But, by subtraction,
this means that while 6600 votes win this party only two seats, they
win its opponent five, and while 8400 votes win it ten seats, they win
its opponent 12.
Figure 1 :
15 Equal-population districts with the votes
for one of two parties.
900 900 450
550 550 550
550 550 350
450 350 350
450 350 200
This example was deliberately constructed to preclude appeal to the

claim of gerrymandering, and in a sense it is immune to that charge.
At the same time, however, it must be recognized that this immunity
stems entirely from the privileging of simple shape as an essentially
aesthetic judgment. Strange shapes (perhaps following a coastline or
a river valley or an ancient tribal boundary) might produce districts
that are more fair, either in the sense of including a more
homogeneous constituency or in the sense of being less biased in favor
of one party or another. For the purposes of this paper, the key point
is the frequent use of the word or in the preceding sentence; that is,
there are many different ways in which fair districting can be
understood, and the imposition of presumably neutral standards like
compactness does not obviate the problem. And, for precisely this
Richard S. Katz 29
reason, strict adherence to a standard of equal population may simply

make partisan gerrymandering easier.
Patronage and the buying of votes

There is general agreement that the buying of votes, whether for cash,
promises of favours, or threats of reprisals is unacceptable, but there
is little systematic consideration of the broader implications of this
position. The basic objection, of course, is that concentrated economic
power should not be converted into electoral power, which should
instead be based on numbers. Further reflection, however, raises two
problems.
The first problem is whether this form of retail corruption is

actually worse than what might be described as wholesale
corruption : corporate threats to relocate a major source of
employment out of a community or party promises to provide benefits
for groups that support them. Of course, it can be argued that the
wholesale forms of corruption involve the exchange of votes for public
goods whereas the reward for the retail vote-seller is purely private,
but whether this distinction can be maintained in cases of policies that
benefit only a narrowly defined set of voters is questionable. But if
the distinction cannot be maintained, the result is to give those in
control of government or corporate wealth an avenue of influence
denied to those without those assets.
The second problem concerns the purpose of voting. While the

communitarian model of democracy assumes that there is a single
common interest that is separate from and above the simple sum of
the citizens private interests, liberal models are based on the
fundamental primacy of private interests, and while popular
sovereignty theories talk about the popular will in the singular, they
define it as the aggregation of individual wills.5 But if it is assumed not
only that citizens will vote so as to advance their private interests, but
also that they should vote on this basis, why should they be barred
from acting on the view that their individual votes will advance their
private interest more effectively if regarded as private goods to be sold
on the private market ? Moreover, given the experience of machine
politicians, particularly in the United States but not only there, in
integrating new citizens into the political community through
Christmas turkeys, jobs, or outright bribes (see Riordon, 1963), one
might question the assumption that patronage and vote buying
undermine democracy.
Regulation of parties
Even when they do not accept the full equation of democracy with
party government (Katz, 1987), political scientists and political
practitioners alike generally accept E. E. Schattschneiders (1942 : 1)
dictum that political parties created democracy and that modern
democracy is unthinkable save in terms of the parties. This means, on
the one hand, that free and fair elections require the presence of
political parties a requirement that may be interpreted as imposing
an affirmative mandate to assure that there are parties and, on the
other hand, that some restrictions on parties may be justified. While
there are many aspects of this problem, I will mention only two :
registration of parties and regulation of their internal organization
(internal democracy). A third aspect, political finance, is raised later.
Registration of parties : Laws setting conditions under which

political parties will be recognized and will be given privileges like
assured ballot access, public subsidies, or representation in
parliamentary committees all can be justified as necessary to make
elections manageable. An excessive number of choices is likely to so
fragment the vote that the result will not be meaningful; similarly,
excessive fragmentation in parliament is likely to make the
maintenance of stable majorities impossible.
An official party registry facilitates timely and definitive resolution

of conflicts concerning the use of a party name and the right of
individuals to identify themselves as candidates of the party. At the
same time, however, one effect of such regulations is almost inevitably
to stack the deck in favor of the existing parties : requiring new would-
be parties to undertake extensive organizing efforts at a time when
politics is likely to be less salient; freeing existing parties from the need
to expend resources to collect petition signatures or otherwise to
demonstrate support in advance of the election in order to secure a
place on the ballot; giving established parties resources and a position
in parliament that are denied to independents or newcomers. The
problem is to strike the proper balance between unfettered entry into
the electoral arena and meaningfully structured competition.
Where that balance lies depends on the conception of democracy

with which one begins. In particular, while the model of legislative
popular sovereignty would incline the balance toward easy
qualification of parties, the models of binary or Downsian democracy
would incline it very much the other way. Similarly, the pluralist or
Richard S. Katz 31
majoritarian models of liberal democracy suggest raising the bar for

the entry of new parties in the interest of encouraging diverse
interests to coalesce within broader umbrella parties while veto group
liberalism would be more lenient, at least for parties claiming to
represent interests that do not already have their own party.
Internal party democracy : Does democracy require (or indeed is

democracy even furthered) by requiring that parties be democratic
with regard to their internal (policy formulation, candidate selection,
etc.) procedures ? Although it is appealing to assume that the answer
to this question must be yes, and although there have been moves in
this direction within the regulatory systems of some democracies, the
answer in fact is far from clear.
If democracy implies active citizen participation and parties provide

one of the venues for that participation, then internal democracy is
important. Similarly, if democratic elections are about choices of
representatives and among candidates, internal democracy may allow
groups of citizens to determine the individuals who will represent
them and the policy preferences that they will represent. On the other
hand, there is a significant body of democratic theory that takes the
opposite positionarguing, in Giovanni Sartoris (1965 : 124) words,
that democracy on a large scale is not the sum of many little
democracies. Anthony Downs (1957 : 25), for example, argues against
an inclusive definition of party, or internal party democracy, because
whatever policies emerge are likely to form a hodgepodge of
compromises. In this case, even if the representational function of
elections might be enhanced, the clarity of choice offered to the voters
would be sacrificed. And indeed in the Downsian model, the aim of
democracy is furthered by competition between parties that are
motivated solely by the private interest of their leaders, who generate
popular policies simply as a means of winning votes. It is the personal
disinterest in policy of the party leaders that leads them to converge
toward the first preference of the median voterwhich is the policy
package that has the best claim to the title will of the people. But
since individual party members would not share in the personal
rewards of office, the presumption is that they are motivated by
policy. Thus, even if internal democracy did not produce the
hodgepodge of compromise that Downs feared, it would produce
proposals near to the median preference of each partys members, and
therefore not at the median of the electorate as a whole. In other
words, democracy within the parties would prevent the democratic
outcome that is supposed to be furthered by competition between the

parties.
While the Downsian ideal of convergence requires a two-party

system, the requirement in multiparty systems is that the leaders of the
parties be willing and able to compromise with one another to form
coalitions. Particularly because internal party democracy is likely to
empower activists, who tend to be stronger if not necessarily more
extreme in their preferences, rather than either base party members
or party supporters in general, it is likely to make compromise less
rather than more easyand indeed in Lijpharts original work on what
he called in English consociational democracy (Lijphart, 1968) (kartel
democratie in Dutch), elite autonomy from their followers was
advanced as one of the secrets to maintaining liberal democracy in a
deeply divided society. From this perspective as well, the claim that
internal party democracy will further democracy at the system level is
at least suspect.
Are free and fair compatible ?

The previous section was concerned with the ways in which the
standards of free and fair are dependent on the understanding of
democracy adopted. In this section, I address a related questionthe
degree to which freeness (understood to mean the lack of restrictions
on those contesting elections or otherwise participating in electoral
politics) and fairness (understood as the metaphorical level playing
field) are compatible.
Limitations of party campaign practices

The idea that certain forms of campaign practice must be banned
because they risk offending groups or inflaming passions, or that
certain ideologies or individuals must be banned as being anti-
democratic may seem appealing at first glance but is problematic on
closer inspection. In Rousseaus (1947 : 91) democratic theory, for
example, the first question that should always be proposed, and never
on any account omitted was whether the present form of
government should be continuedin other words, democracy
requires that the continuation of democracy always be regarded as an
open question. To say, for example, that the people of a liberal
democracy may not choose to be governed instead by a theocracy
delegitimizes democracy in its own terms; consent is meaningless if
there is no way in which lack of consent can be expressed.
Richard S. Katz 33
Enforcement of good taste, civility, or truthfulness in campaign

activity all necessarily involve not just the protection but also the
constriction of democracy. While incitement to genocide, for example,
clearly cannot be protected,6 it also must be recognized that the
definitions of good taste, civility, or truth often are politically
contentious, so that to impose definitions is to bias the discussion.
Again, a balance is required rather than simply an attempt to impose
civility, respect for authority, or truthfulness through legislation.
Funding of politics
The conflict between freedom of speech and other democratic values
like community also arises with regard to regulation of party finance.
First, there is a conflict between the ideals of equality and majority
rule (which might suggest, among other things, strong limits on the
size of allowable contributions from individual citizens and perhaps a
total ban on political spending by anyone/anything except
individuals), on the one hand, and the ideals of freedom of speech and
the liberal pluralist notion that various groups, endowed with
different mixes of resources (numbers for some groups; wealth for
others; access to or ownership of strategic communications media for
still others) should be allowed to protect and advance their interests
as best they can.
Second, there is a conflict between the ideal of politics as a labor

intensive activity in which large numbers of citizens take part on a
regular basis (again suggesting strict limits on party finance) and the
reality that electoral politics has become a capital and expertise
intensive activity, in which citizens often can take part more effectively
by pooling their financial resources so as to hire experts. In particular,
this calls into question the idea that direct spending should be
protected as an expression of the right of free speech whereas
contributions can be regulated (e.g., Buckley v. Valeo 424 U.S. 1), as
giving a right to those who are rich enough to take effective action on
their own that is denied to those who must pool their resources in
order to be effective.
Third, there is a conflict between the idea that the effects of

regulations concerning party fund-raising, and especially concerning the
provision of public resources or privileges, ought to be in rough
proportion to current popular support, and recognition that those who
want to challenge the status quo often depend on a very few large
donors or access to public resources in order to build public support in
the first place. Moreover, where access to public resources is afforded to

parties simply by virtue of their qualification for the ballot, there is a risk
of candidacies motivated by desire for the resources rather than desire
to influence policy. If access is not equal however, this generally means
giving the established or larger parties access to public resources in
greater amounts and on more favorable terms than is given to new
parties. In other words, apparent equity based on demonstrated
support can be extremely conservative in its effect.
Fourth, there is the conflict between the fear that enforcement

powers will be used by those in power to repress, harass, or hamper
their opponents and the recognition that regulations without an
effective enforcement mechanism are unlikely to be effective and may
bring the entire notion of fairness through regulation into disrepute.
While this problem may be mitigated through the use of non-political
election management agencies, it still must be recognized that non-
political often is in the eyes of the beholder, and indeed that the very
notion of non-political administration has historically reflected a
profoundly bourgeois conservative bias.
Access to media
In large societies, freedom of speech without access to the media of
mass communications is worth very little. Goodwin-Gill (1994 : 24, 67),
for example, cites the final document of the CSCE 1990 Copenhagen
Conference that no legal or administrative obstacle [should stand] in
the way of unimpeded access to the media on a non-discriminatory
basis for all political groupings and individuals wishing to participate
in the electoral process. The problems are, first, that like the
universal in universal suffrage, no one means unimpeded to be
taken literally, and second, that as with public financial support the
standard of non-discriminatory is fraught with ambiguity. These
problems are manifested in a number of more specific questions.
The first concerns the allocation of time, particularly on state owned

media. This reproduces the problems cited above with regard to
financial subventions : Who is eligible ? Is the allocation made equally
to all qualified parties (with the danger of inspiring frivolous
candidacies or spurious multiplication of parties) or proportionately
based on strength (with the bias against new-comers that this
implies) ? Further, who will pay for the production costs (public
payment implying a restriction on the right of the well-endowed to
produce the most effective message, with private payment
Richard S. Katz 35
advantaging those who can afford to pay for more professional

presentation) and (in part in response to the first problem) should
form or content restrictions be imposed (e.g., allowing only a studio-
based talking head) ?
The second concerns the reporting of news. Reporting always

involves choices : which stories to cover; how to frame them; etc. News
reporting is important in a free and fair election because it gives the
voters the information they need to make informed choices. But this
is just another way of saying that news is expected to affect voters
choices. The problem is to reconcile freedom of the press with fairness,
given that fairness and balance are inherently subjective. Can there be
an objective standard of fairness in reporting ?
Because this problem appears to have particular purchase with

regard to public media, where the danger of journalistic bias being
imposed as a political choice by and in favor of those currently in
power is apparent, there has been a tendency to try to impose more
objective standards in these cases. Frequently, these take the form of
stopwatch-based equality of coverage. Although not specifically
related to elections, the length to which this kind of requirement can
be taken is illustrated by Italian televisions coverage of government
crises in the 1960s :
No politicians voice was ever heard, nor were his words quoted
directly. Instead, party leaders appearing for consultation with the
president of the republic were each shown from the same camera
angle and for the same amount of time; upon his exit, each was
shown in turn speaking at a microphone, but without sound. While
this went on, a disembodied voice...read a carefully written and
approved summary of what he had said... Italian politicians on
television [resembled] fish in an aquarium their mouths move, but
no sound emerges (Porter, 1977: 261-2).
The more one tries to impose the appearance of fairness, the more
one impinges on freedom, or effectiveness, or both.
On the other hand, although it may be more legitimate to impose

on the freedom of journalists who are, at least indirectly, in the
employ of the government, the problem of unfairness facilitated by
insistence on journalistic freedom may be far greater with regard to
privately owned media. A current example would be the plans of the
Sinclair Broadcasting Group in the United States in 2004 to air a
documentary film of questionable veracity that was highly critical of

John Kerry in the days immediately before the presidential election,
while labeling it as news. On a grander scale, one could point to
Italian Prime Minister Silvio Berlusconis ownership of much of the
Italian private television industry. When control of the media is both
concentrated and in politically interested hands, only the self restraint
of the owners can assure even an approximation of fairness in the
absence of regulation that must be recognized as an infringement of
freedom of speech. Ultimately, one can have one or the other, but not
both.
Conclusion
If the analysis above is of any value, it is to highlight three facts that
must be central to any attempt to assess the freeness and fairness of
elections. The first is that if all one wants to do is identify electoral
events or practices that are grossly inadequate, the task is easy. If
ballot boxes are stuffed, or voters are credibly threatened with death,
or opposition candidates are barred from campaigning, or
government coffers are opened to fund the campaign of only one
party, a precise legal code is not required for the legitimacy of the
outcome to be rejected.
The second conclusion is that once one allows the possibility of

degrees of freeness and fairness, the task becomes very complicated.
Most obviously, the problems of establishing thresholds of
acceptability and measures that can be used to assess the placement
of actual electoral events relative to those thresholds are far from
trivial, and are only complicated by recognition that the reports of
election observers may have a significant bearing on the likelihood of
post-election violence and on the likelihood that a transition to stable
democracy will be continued. Is a flawed election better or worse than
no election at all ? Beyond these problems, however, what this paper
has shown is that even the standards by which acceptability might be
judged depend on the understanding of democracy that one employs.
The third conclusion is closely related, and equally troubling. It is

that while democratic legitimacy requires that elections be both free
and fair, there are a wide range of conditions and circumstances
under which freeness and fairness are incompatible. As a result, a
balance must be struck between the two desiderata. While the
particular balance that is appropriate will depend to a certain extent
on local conditions (limitations of freedom in the name of limiting
Richard S. Katz 37
concentrated economic power or media control are more justified

where there is more concentration in the first place), they cannot
determine the one most appropriate tradeoff, because there is no
one most appropriate tradeoff.
Few, if any, decisions of these types are politically neutral. Some

interests or parties are advantaged and others disadvantagedat
least relative to other decisions that might equally plausibly have been
proposed. Since there can be no unproblematic standard by which
freeness or fairness can be assessed, this means that to propose
reforms, even in the name of fairness or neutrality, is likely to be
perceived by some participants as taking sides in the substance of
political competition. Certainly there are some practices that are
unacceptable by any reasonable standard of democratic propriety, and
those should be opposed. Beyond that, however, those who advocate
standards for the evaluation of electoral practices would be well
advised to recognize that such proposals are not above politics, but are
of politics.
About the author: Richard S. Katz is Professor of Political Science at

The Johns Hopkins University in Baltimore. His books include: A Theory
of Parties and Electoral Systems, Democracy and Elections, Party
Organizations : A Data Handbook, and How Parties Organize (the
latter two co-edited with Peter Mair). Katz has served as chair of the
Representation and Electoral Systems section of the American Political
Science Association and as convenor of the Standing Group on Political
Parties of the European Consortium for Political Research. He is
currently on the editorial boards of Party Politics, Irish Political Studies,
and European Union Politics, and is co-editor of the Political Data
Yearbook for the European Journal of Political Research.
References :
Barber, Benjamin (1984) Strong Democracy: Participatory Politics for a New
Age, Berkeley : University of California Press.
Bentham, Jeremy (1962) Radical Reform Bill with extracts from the reasons, in
John Bowring (ed) The Works of Jeremy Bentham, New York : Russell & Russell.
Carver, Richard (2000) Broadcasting and political transition : Rwanda and
beyond, in Richard Fardon and Graham Furniss (eds) African Broadcast
Cultures : Radio in Transition, Oxford : James Currey, pp. 188-97.
Downs, Anthony (1957) An Economic Theory of Democracy, New York : Harper
and Row.
Elklit, Jrgen and Andrew Reynolds (2005) A framework for the systematic
study of election quality, Democratization, forthcoming.
Goodwin-Gill, Guy S. (1994) Free and Fair Elections : International Law and
Practice, Geneva : Inter-Parliamentary Union.
Katz, Richard S. (1987) Party government and its alternatives, in Richard S.
Katz (ed), Party Governments : European and American Experiences, Berlin : de
Gruyter, pp. 1-26.
Katz, Richard S. (1997) Democracy and Elections, New York : Oxford University
Press.
Katz, Richard S. (2004) Increasing turnout: Might the cure be worse than the
disease ?, paper presented at the Joint Sessions of Workshops of the European
Consortium for Political Research, Uppsala.
Lijphart, Arend (1968) The Politics of Accommodation, Berkeley : University of
California Press.
Lijphart, Arend (1999) Patterns of Democracy, New Haven : Yale University
Press.
Mackenzie, W.J.M. (1958) Free Elections : An Elementary Textbook, London :
George Allen & Unwin.
Macpherson, C.B. (1977) The Life and Times of Liberal Democracy, Oxford :
Oxford University Press.
Porter, William E. (1977) The mass media in the Italian elections of 1976, in
Howard R. Penniman (ed) Italy at the Polls : The Parliamentary Elections of 1976,
Washington : AEI, pp. 259-86.
Riordon, William L. (1963) Plunkitt of Tammany Hall : A Series of Very Plain
Talks on Very Practical Politics, New York : E. P. Dutton.
Rousseau, Jean Jacques (1947) The Social Contract, New York : Hafner. Sartori,
Giovanni (1965) Democratic Theory, New York : Praeger. Schattschneider, E.E.
(1942) Party Government, New York : Holt, Rinehart and Winston.
Schumpeter, Joseph (1962) Capitalism, Socialism and Democracy, New York :
Harper and Row.
Richard S. Katz 39
Notes :
1
Although there are some apparent similarities between what I have identified
as popular sovereignty models of democracy and Lijpharts (1999) model of
majoritarian democracy (in particular in the formers identification of the
popular will with the will of the majority itself identified in my popular
sovereignty models as the Condorcet choice, assuming that there is one),
there are also substantial differences. Likewise, although there are similarities
between my liberal models of democracy and Lijpharts consensual model
(indeed, I regard Lijpharts (1968) earlier model of consociational democracy
to be one of the liberal models), these two categories are far from identical.
2
I use the phrase political space as a short-hand to refer to the number of
issues in play, their nature (i.e., whether the options may best be
characterized as dichotomous, polychotomous, or continuous), their
dimensionality, and the degree to which attitudes concerning different issues
may be expected to cluster.
3
While not including all of the criteria that they consider, this list is adapted
from Elklit and Reynolds (2005 : Table 1).
4
This example was chosen deliberately to be provocative. In substantive terms,
I agree with the point that David Beetham raised in reply, that the exclusion
of women simply is wrong. On the other hand, like all questions of right and
wrong, the virtue of including women is not amenable to an empirical
answer. As with the teaching of evolution as the only scientific theory of the
origin of species (with theory here implying no more doubt than it does with
regard to the theory of gravity), overwhelming consensus on the part of
experts may have little probative value with those who, for cultural reasons,
do not accept the basic premise. But it is precisely in those circumstances in
which there is disagreement about culturally specific values that the problem
of defining free and fair is most important.
5
An exception is what I described (Katz, 1997) as collectivist popular
sovereignty theories.
6
For example, Georges Ruggiu pleaded guilty to incitement before the
International Criminal Tribunal for Rwanda. See Carver (2000).
Judging Elections and Election
Management Quality by Process*
Jrgen Elklit and Andrew Reynolds
At the heart of democratization attempts lie competitive elections,
often held during times of societal stress and under imperfect logistical
conditions characterized for example by administrative unreadiness.
The claim here, as argued in greater length elsewhere (Elklit and
Reynolds, 2002), is
that the relationship between the institutionalization of electoral
politicsin particular the administration of the electoral process
and the emergence of democracy in the developing world and
elsewhere is a much under-studied part within the fields of
governance and democracy studies; and
that a focused analysis and assessment of the quality of the various
elements in the electoral process will provide those interested in
electoral quality in general and election management quality in
particular with a useful instrument, which has so far been lacking in
the tool kit of electoral assessment.
It is difficult not to agree with those who claim that assessments of

elections must focus on the entire electoral process, as the component
parts of that process all have at least some bearing on the entire
outcome of the election, i.e., not only the results as such, but also
whether or not the entire electoral process is seen as legitimate and
binding by voters and other political players.
The quality of an election can thus be conceptualized as the

degree to which political actors at all levels and from different
political strands see the electoral process as legitimate and binding.
However, the operationalization of this theoretical concept is
not easy, even though the IPU publication of the landmark study
Free and Fair Elections : International Law and Practice by Guy
Goodwin-Gill (1994) has contributed substantially to the understanding
and structuring of the field.
* This paper was presented by Jrgen Elklit during Free and Fair Elections, Ten Years
On: An International Round Table on Election Standards, held in November, 2004.
The authors are grateful for the helpful comments received from our two
respondents at that time, Horacio Boneo and Ron Gould. We also appreciate the
comments offered at an Australian Electoral Commission workshop in June 2004 and
by an anonymous referee and Peter Burnell, editor of Democratization. Substantial
parts of this article have appeared in a previous article by Elklit and Reynolds
published in Democratization in 2005.
54 Judging Elections and Election Management Quality by Process
One important result of more than a decade of global diffusion of

multiparty politics and support for the holding of democratic elections
is that it has eventually been realized that the quality of election
administration has a direct and important impact on the way in which
elections and their outcomes are regarded, not only by international
observers and monitors and their organizations, but alsoand more
importantlyby domestic political actors such as voters, parties and
party leaders, media, and domestic observers. However, these groups do
not necessarily see things the same way; indeed, their differential
perceptions are useful as they allow us to gauge, at least partly, the
reasons why different groups arrive at variant assessments of the same
electoral process.
Focus here is on how institutional factors and institutional choices,

and the ensuing administrative and political behaviour, contribute to
the quality of the entire electoral process and therefore also to the
transition and the eventual consolidation of democracies. This inevitably
leaves aside a whole array of other issues, which also influence the way
in which elections are perceived and contribute to the way in which
democracy gradually becomes the only game in town, if that happens.
Elections play a crucial role in that development because they are a

necessary condition for having some kind of democratic regime. That is
why we focus specifically on the way in which elections are conducted
and formulate our questions so that they will enable us to gauge the
effectiveness and positive contribution of institutional choices related to
electoral process management and the impact of the various stages of
the implementation process. Following from this, our main claim is :
that individual experiences in a number of fields related to the
electoral process have a direct bearing on how the sense of political
efficacy develops in individual citizens; and
that this is an important factor behind the development of
democratic legitimacy as well as a principled commitment to
democracy, i.e., progression towards democratic consolidation (even
during the transition phase).
Assessing and observing elections

While an assessment of the quality of national elections (i.e., freeness,
fairness, and administrative efficacy) requires a fitting methodology, a
clear void exists in the academic and policy literature that focuses on this
problem. The field is ripe for the development of a systematic method
Jrgen Elklit and Andrew Reynolds 55
that pursues this goal, one that can be applied in the context of both
developed and developing world cases, whether during first or
subsequent electoral events.
Below, we go beyond previous work in the field of elections and

election administration assessment by suggesting a more operational
and empirically-oriented approach. We introduce and describe the
elements and the scoring methodology of our assessment framework,
explaining its rationale and offering the model to election practitioners
as well as to election observers and academics interested in these issues.
To illustrate its workings we have also scored six multiparty elections :
two in established democracies (Australia and Denmark 2001) and four
in fledgling democracies (South Africa 1994 and 2004, East Timor 2001,
and Zimbabwe 2002), so two of our cases are in the same country over
time. This degree of specificity is indicative of the route this field of
study must take if it is to contribute substantially to the empirically
based assessment and analysis of elections and election management.
We want to stress that the intention is not only to develop an
instrument for academic analysis. Our claim is that the same instrument
will allow useful specific comparisons of developments from one
election to the next in the same country and also, although requiring
more care, between countries.
We strongly hope that the presentation of this framework and this

approach will engender more debate and analysis, which will in return
facilitate the models use as a practical tool for both non-governmental
and governmental election observation missions and as a research tool
to better understand the issues that determine electoral quality and
legitimacy. We are mindful that the model will also allow election
managers and administrators to assess the quality of their own work on
a comparative basis.
The work has its seeds in our own previous work (Elklit and Reynolds,
2001; 2002) which was further developed during a workshop organized
by the Australian Electoral Commission in Canberra in June 2004. It is
only quite recently that students of democratization have begun to
acknowledge that governance issues must also encompass issues related
to the conduct of elections in both consolidated and emerging
democracies. Those analyses generally agree on conceptualizing
electoral governance as a set of closely linked activities, sometimes
categorized under the older headings of rule making, rule application,
and rule adjudication (Mozaffar and Schedler, 2002 ; Kjr, 2004 :
157-71 ; Elklit and Reynolds, 2002; Lpez-Pintor, 2000; Elklit, 1999;

Norris, 2004; Mozafar, 2002).
Mozaffar and Schedler (2002 : 5) claim that because elections in

established democracies tend to be routine events, usually producing
results within a narrow but fully-acceptable margin of error, systematic
analysis of electoral governance has not attracted much scholarly
interest. There will always be some margin of error as it is difficult to
envisage any large-scale operation such as a national election not being
occasionally infected by defective ballots, incomplete voter registers,
inaccuracies in counting and impersonation, etc. Humans make
mistakes, but if these errors are random and do not accumulate to
influence the outcome of the election, electoral credibility survives,
which is exactly why these credible routines themselves tend to obscure
how important electoral governance is. Electoral governance issues only
attract critical attention when something goes seriously wrong, or when
an electoral issue is taken up as part of a more general election-related
controversy (Mozafar and Schedler, 2002 : 6; Schedler, 2002).
It seems self-evident that good electoral governance contributes to

the democratic legitimacy of competitive elections, but it is not easy to
determine exactly how electoral governance in itself affects political
democratization and the development of democratic legitimacy. The
claim that electoral quality has a bearing on political legitimacy matters
is intuitive, but it is more difficult to offer convincing theoretical
arguments and empirical evidence. Indeed, previous attempts at
conceptualizing electoral manipulation have aimed at measuring
violations of democratic norms during the electoral process, and thus
have focused on electoral manipulation as an indicator, not a cause, of
illegitimacy (Elklit and Svensson, 1997/2002; Goodwin-Gill, 1994).
Obviously, attempts to hypothesize about the causes of political

legitimacy (or illegitimacy) require the inclusion of a number of
variables (including different forms of electoral manipulation), which
are difficult to operationalize and to measure empirically in such a way
that clear conclusions can be established. In spite of these difficulties,
one might still be able to use empirical observations as indicators of high
or low levels of political legitimacy. Interestingly enough, a number of
studies on elections and electoral issues in Latin America do touch on
these questions, even though often more indirectly. A recent example
analyses the differential turnout rates across Guatemala and tries to
identify reasons for the biases (Lehoucq and Wall, 2004).
We emphasize the intimate linkage between the entire electoral

process and democratization, but one can go beyond an analysis which
is focused on that context. Post-conflict elections must also be judged
on their contribution to bringing conflict to closure. Post-conflict elections
in cases such as Bosnia and Herzegovina, Mozambique, Angola,
Afghanistan and Iraq are obvious examples. However, the framework
presented below does not include a special category of post-conflict
war-torn societies alongside fledgling and established democracies
because we want, in this context, to focus on our main objective, which
is the presentation and discussion of the basic framework. Still, there is
reason to believe that the addition of a new category, akin to Lyonss
(2004) analysis of the role of election administration in some of the more
complicated post-conflict elections, could prove very valuable. At the IPU
round table, Ron Gould also argued that the use of only two categories
would most probably appear to be insufficient, and that one or more
in-between categories would need to be established.
Why the need for such a measurement tool ?

The lack of a robust and comprehensive framework of analysis has left
a space which has so far been filled by two equally-unsatisfactory
outcomes : Either election observers make judgments on the basis of
impressionistic and incomplete evidence focused on the conduct of the
vote and count on election day, or observation missions (often from
abroad and with their own governments lead) call an election in a
politicized way, detached from any relation to the truth of the process
itself. A case in point here is the pronouncement by the official South
African observation mission that the 2002 Zimbabwe presidential
elections were free and fair.
The greatest failing of election assessment to date has been the

tendency to see election quality in bimodal terms. The election is either
good or it is bad; or, when a fudge is required, it is substantially free
and fair. We claim that the quality of elections across cases and across
time can be seen as existing on a continuum, even though it makes
sense to approach this fuzzy concept as one of multidimensionality
(Elklit and Svensson, 1997/2002). Election management within a country
can be strong in some areas and weak in others. The playing field that
regulates the campaign can vary subtly in both de jure and de facto
ways, and elections clearly can improve as well as decline quality-wise
on a number of dimensions over time. One needs to look at both process
and outcome to gauge the full picture of election quality.
It would be too simplistic to apply a rigid methodology which gave,

for example, Sweden a 92, the United States a 78, and the Congo a 59
and see such scores as perfect indicators of the nuances of all that goes
into allowing for good electoral processes. At the same time, however,
there are clear clusters of electoral elements which we can assess, and
one is able to offer an overall assessment of election quality which is
more rooted in the evidence than previous impressionistic offerings.
There is also the important question of whether an elections failings

are great enough to affect the final result. Is an election during which
only 1% of the votes are lost or manipulated and the winner wins by
1
/2% any worse than an election during which 30% of the votes were
irregularly cast or treated but the winner wins by 35% ? Should election
quality primarily be assessed on the basis of the electoral process or the
electoral outcomeor both ?
We do not offer a foolproof method for categorizing election quality,

but rather lay out a framework which is more comprehensive and
meaningful than anything that has come before. Using a consistent and
over-arching assessment model allows not only for cross-country
comparisons but also for comparisons of elections within a single
country over time. We believe the framework will identify patterns of
success and failure in the fairness of elections and be able to spotlight
the weak areas of election administration that a government might
reasonably focus its subsequent quality improvement efforts on.
We are also aiming to develop a logically-sound methodology, one

that lends itself in the context of election management to an
uncomplicated application, straightforward mapping, and easily-
determined quantification. The use of the framework in very different
environments is a strong argument for not applying complex statistical
methods, which may not be appropriate in all cases. This form of
modesty is also warranted when the phenomenon under scrutiny is
characterized by a considerable number of constantly changing
variables, many of which are difficult to measure in a precise, valid, and
reliable way.
We expect the model to be refined by the expertise of academics and

practitioners both for its scope and scoring methodology. We think it is
useful to take an election that one is familiar with and for which one
has access to relevant data, and then to score the case using our
methodology. Eyeballing the results alongside the examples we offer
here will give a good feel for the strength, or not, of the framework.
It looks as if established democracies might tend to lose points on

areas of election management such as transparency, voter education,
campaign regulation, and appeals processes. Our guess is that effective
provisions covering these areas have atrophied as public trust in the
system has grown over time. The framework therefore identifies a
potential Achilles heel in elections, even within stable democracies. A
thorough assessment of both voter registration and complaint
procedures in Florida prior to the 2000 US presidential election (and in
a number of other US states in 2004) would most likely have identified
the issues which marred the two electoral processes.
In fledgling democracies, the niceties of election law may be quite

robust, at least in the first competitive election, but the playing field
of electoral competition is often deeply skewed in favour of
dominant parties and elites. This is something that becomes even
more problematic over time. Our framework attempts to capture
both sides of the equation, the de jure and de facto rules that shape
elections, the written laws and the practical realities, the freeness of
the vote and the fairness of the campaign, as well as the chance to
win and the ability to lose.
Introducing the framework

One of the chief questions when trying to gauge the freeness and
fairness of an electoral process is where to draw the boundary when it
comes to deciding what issues are relevant to the question. The
boundary lines are murky. While we feel it is important to go beyond
polling day and the vote count, we exclude from our analysis the very
broad determinants of political competition that speak only more
indirectly to elections and voting. For example, we include questions of
access to public media and boundary delimitation while excluding more
general issues of party funding and candidate selection.
When it comes to the electoral indicators, our rule of thumb is not

to pronounce upon the inherent fairness of an electoral system or
regulation (if it is generally perceived to be a legitimate democratic
option), but rather to assess whether the rules, as written, are
applied fairly and without partisan bias. Kenya, to take just one
example, would not lose points because it uses a majoritarian rather
than a proportional electoral system but because its majoritarian
single member districts are so massively malapportioned, in a manner
which gives rise to partisan bias.
There will probably be criticisms of our framework, just as there are

valid criticisms of any assessment method that combines elements of
objective and subjective assessments and weightings of various
elements. Through our pilot studies, however, we find our method
defensible on grounds of providing results that are prima facie intuitive
and reasonable. The expert panels which we envisage would use the
framework should be knowledgeable, detached, and diverse, and we
believe that the data indicators identified give us the best purchase on
the questions we seek to answer. Of course country experts may assign
different scores within the 54 survey questions, and we encourage them
to do so; this merely indicates the frameworks sensitivity to a
continuum of indicators.
After settling on relevant areas of election regulation and

administration the issue becomes : Which questions must one ask to
gain a clear view of the workings of the given area, and what data
will serve as good indicators of electoral performance? In our model
we have eleven steps ranging from the initial legal framework to the
closing post-election procedures. We incorporate the areas an
Election Management Body (EMB) usually has responsibility over:
districting, voter education, registration, the regulation and design
of the ballot, polling and counting along with some broader areas
such as campaign regulation, complaints procedures, and the
implementation of electoral results.
Each step includes three to ten questions, the answers to which will
gauge the quality of election administration and conduct for that step.
In sum, there are 54 questions that act as our indicators. Some of them
may be criticized for not providing sufficient discrimination between
cases, and one may therefore argue that they should be excluded. Still,
at least some of them will help clarify that some components of
election administration are performed more or less in an identical
fashionan important point to be made. Some steps are analysed
primarily through reference to data such as specific voter education
efforts, while others are by necessity scored more on the basis of
expert judgments (i.e., the perceived legitimacy of the EMB, even
though this variable can also, at least in some cases, be gauged from
survey data). These answers will to some degree be based on data, but
more likely on expert readings and assessments of events and the
domestic political climate. However, we also believe that the scoring
on the performance indicators can be done, at least tentatively, by
election observers (i.e., typically the long-term observers).
Table 1 : Election assessment steps and performance indicators
Step Performance indicators How to measure
1. Legal 1.1. Is a consolidated legal foundation easily available ? Expert panel

framework 1.2. Is a comprehensive electoral time table available ? assessment
1.3. Were the elections held without extra-legislative delay ?
1.4. Can the electoral legislation be implemented ?
1.5. Is the electoral framework broadly perceived to be
legitimate ?
2. Electoral 2.1. What is the perceived degree of legitimacy/acceptance Polling evidence

management of the Electoral Management Body (EMB) by parties for perceptions
and voters ? Expert panel
2.2. What is the perceived degree of the EMBs impartiality ? assessment for de
2.3. What is the perceived quality of the EMBs delivery jure and de facto
of service in these elections ? analysis of EMB
2.4. What is the perceived degree of the EMBs impartiality
transparency ? Survey of stake-
holders for EMB
quality and
transparency
3. Constituency 3.1. Is the constituency structure reasonable and broadly Expert panel
and polling accepted ? assessment
district 3.2. Is information about constituencies and lower level Stakeholder surveys
demarcation districts (demarcation, sizes, seats) easily available ?
3.3. Are fair and effective systems for boundary limitation
and seat allocation in place and used according
to the rules ?
4. Voter 4.1. What percentage of voters in need of voter education In need is here
education is exposed to voter education which facilitates their operationalized as
effective participation ? first time voters.
4.2. Have at-risk groups been recognized and their At-risk are
identified needs addressed ? historically margin-
4.3. What percentage of ballots cast is valid ? alized groups.
4.4. In terms of voting age population, what percentage Voter education
of those eligible to vote for the first time in this outreach assessed
election actually voted ? through surveys
Other data from
register, polling,
and election results
5. Voter 5.1. What proportion of the voting age population Data from register
registration is registered to vote ? Expert panel
5.2. Is the register free from serious bias based on gender, analysis
age, ethnic or religious affiliation, or region ?
5.3. Are qualified people able to be registered with a
minimum of inconvenience ?
5.4. Are there appropriate mechanisms for ensuring that
the information in the register is accurate ?
5.5. Are there appropriate mechanisms for ensuring that
the public can have confidence in the register ?
5.6. Are the criteria for registration fair and reasonable
and compliant with accepted international standards ?
6. Access to 6.1. Are parties allowed, and can parties and candidates Expert panel
and design of that fulfil the requirements of registration be registered assessment
ballot paper. without bias ?
Party and 6.2. Are independent candidates allowed and registered
candidate if they fulfil legal requirements ?
nomination 6.3. Is the method of voting or the design of the ballot
and paper non-discriminatory ?
registration
7. Campaign 7.1. If there is a system to provide access to state-owned Expert panel

regulation media, is it implemented equitably ? assessment
7.2. If a system for allocation of public funds to political
parties is in place, is it implemented ?
7.3. Is there an independent mechanism for identifying
bias in the state media and is identified bias subject
to swift correction ?
7.4. Are state resources by and large used properly
by the political parties and candidates ?
8. Polling 8.1. What is turnout as a percentage of total registration ? Data from elections
8.2. What is turnout as a percentage of the voting age results and observer
population ? reports
8.3. Is there a low level of serious election-related violence ? Expert panel
8.4. In how many polling stations did polling happen assessments based
according to rules and regulations ? on data
8.5. Are there systems in place to preclude and/or rectify
fraudulent voting ?
8.6. Is polling accessible, secure, and secret ?
8.7. If there is substantial desire for election observation,
is the desire satisfied ?
8.8. If there is substantial desire for political party election
observation, is the desire satisfied ?
8.9. Are there systems in place to preclude vote buying ?
8.10. Is the level of intimidation sufficiently low that voters
can express their free will ?
9. Counting 9.1. Is the count conducted with integrity and accuracy ? Expert panel
and 9.2. Is the tabulation transparent and an accurate reflection assessments
tabulating of the polling booth count ? based on data
the vote 9.3. Are results easily available to interested members from observer
of the general public ? reports
9.4. Does counting take place with no undue delay ?
9.5. Are parties and candidates allowed to observe
the count ?
10. Resolving 10.1. Are serious complaints accepted for adjudication ? Expert panel
election 10.2. Is there an appropriate dispute resolution mechanism assessments
related which operates in an impartial and non-partisan Reports
complaints. manner ?
Verification 10.3. Are court disputes settled without undue delay ? Legislation
of final 10.4. Do election observation organizations confirm that the Expert panel
result and elections were without serious problems ? assessments
certification 10.5. If legislation prescribes a timeframe for the constitution
of parliament, is this timeframe met ?
10.6. Is a person with a reasonable case able to pursue that
case without unreasonable personal or financial risk ?
10.7. Are seats taken only by those properly elected ?
11. Post- 11.1. Are properly documented election statistics easily Expert panel
election available without serious delay ? assessments
procedures 11.2. Are EMBs audited and the results publicly available ?
11.3. Is there capacity for election review ?
For consistency each question is answered with reference to a four

point scale (very good [3], good [2], not satisfactory [1] very poor [0]).
Assigning a score from this scale is, of course, ultimately a subjective
call, but we can offer guidelines in some areas (and will do so when
the manual is eventually presented) when it comes to the use of
indicative data. For example, when it comes to scoring questions of
turnout (questions 8.1 and 8.2) one might make the score dependent
on the cases deviation from the peer group average. A turnout of
80% in the Congo might be considered wonderful when compared
to peer group cases, while a turnout of 80% might be considered not
quite as stellar in Australia.
This model is akin to methodologies used for comparative

measures of democracy, human rights, and corruption by bodies such
as Polity, Freedom House, and Transparency International. It shares
the qualities of these indices as well as their problems (Munck and
Verkuilen, 2004), which we will not elaborate on here.1 Each scoring
system depends on both objective data indicators and subjective
expert assessments and they are all, as David Beetham says,
democracy assessment comparisons based on league tables of
human rights and democracy (Beetham, 2004 : 2-3 ; Munck and
Verkuilen, 2004).
In our pilot cases, the original, relatively-simple scoring system

proved inadequate to capture the differing pressures pertaining to
established versus fledgling democracies. Weightings are therefore

used to reflect step importance relative to each of the two types of
polity. Our rule of thumb was to ask : If this element fails, will that
cause the catastrophic breakdown of the electoral process ?
This assessment enabled us to assign essential, important, or

desirable status to each step, as indicated in Table 2, where one also
notes that assignments are not identical for the two types of polities.
To take an example : The standard of election management per se is
in our opinion essential in fledgling democracies because of the
nature of the problems surrounding the entire electoral process,
while election management in established democracies has become
more business as usual. It is still important (as the Florida 2000 case
made so abundantly clear), but failure does not have the same
implications for stability as within democratizing post-conflict
polities. Voter education is another example of an element to which
different importance should probably be attached in established and
fledgling democracies.
Table 2 : Weighting systems for established

and fledgling democracies
Essential Important Desirable

(weight factor : 3) (weight factor : 2) (weight factor : 1)
Established 1. Legal framework 2. Election management 4. Voter education

democracies 6. Access to ballot 3. Constituency demarcation 7. Campaign Regulation
8. Polling 5. Voter registration 11. Post-election procedures
9. Counting the vote 10. Resolving disputes
Fledgling 1. Legal framework 4. Voter education 3. Constituency demarcation

democracies 2. Election management 5. Voter registration 7. Campaign regulation
6. Access to ballot 11. Post-election procedures
8. Polling
9. Counting the vote
10. Resolving disputes
Pilot cases
We have opted for including quite different pilot cases in order to
assess how the instrument performs in systems with high-quality
election management traditions, in transitional systems with
elections run by the international community, in transitional systems
where it is possible to compare two or more elections, and a polity
generally believed to have a dismal election management system.

Unless otherwise indicated, we are dealing with parliamentary
elections to the lower (or sole) house.
The cases to represent established democracies with well-

functioning EMBs are Australia and Denmark, both of which
happened to have ordinary parliamentary elections in the second
half of 2001. As an example of a parliamentary election in a
fledgling democracy conducted by the international community (in
this case, the United Nations) we chose East Timor, which also had
its election in the second half of 2001. South Africa is another
fledgling democracy, but with its own strong election
administration (Padmanabhan, 2002). South Africa provides an
opportunity to assess performance over a decade and on three
different occasions ; we have settled for the elections in 1994 and
2004 to allow for over-time comparison. At the other end of the
scale, we expect to find Zimbabwe. We have chosen the
presidential elections of early 2002 (and not the parliamentary
elections of 2000) to work on the basis of the more recent elections.
However, there are so many similarities between the 2000 and 2002
elections in Zimbabwe that we believe the scoring of the 2002
presidential election will also, to a very high degree, reflect the
situation as it was in 2000.
Even though we have also considered the inclusion of other pilot

cases from sub-Saharan Africasuch as Zambia 2001 (Burnell, 2002;
Kamemba, 2002), Ghana 2000 (Smith, 2002), or Lesotho 2002
(Southall, 2003 ; Elklit, 2002) in order allow more regional
comparisonswe have decided to leave that for another, later
analysis. The principal aim here is to present the instrument and
invite comments on the method and framework.
Scoring (by a select group of experts and experienced observers

well versed in election matters in relation to the specific cases) and
computation of the index values for the six pilot cases was done in
the following way :
1. The first step was to allocate a score (0 : very poor ; 1 : not
satisfactory ; 2 : good ; 3 : very good) to each indicator for the
election in question. In binary situations, 0 and 3 were used. The
tentative scores are all found in Table 3. They are all subject to
correction at this point, but have been provided by evaluators
with good factual knowledge and an understanding of the various
systems. Each score is supposed to strike a balance between the

expectations in a given polity and internationally recognized
norms and standards.2
2. The sum of scores for each of the eleven sets of indicators (e.g.,
7.1-7.4) is then standardized relative to the value ten to make the
index insensitive to the number of indicators used for each step
and for ease of comparison across steps. This procedure also has
the advantage of softening the importance of decisions about
scoring of border-line cases, of which there are a number (i.e., Is
this a 1 or a 0?).
3. This standardized value is then multiplied by three, if the step is
considered essential, two if important, and left as it is (i.e.,
multiplied by one), if it is only desirable, as categorized in Table
2 above. This procedure caters to the various areas being of
different importance in established and emerging democracies.
4. Because of this, the maximum values differ240 for established
democracies and 270 for fledgling democracies. A transformation
to a maximum value of 100 (i.e., a further standardization) is
conducted in order to have values that are as comparable as
possible.
The result is a scoring system in which it makes sense to compare

polities in relation to their level of democratization. Indeed, this was
one of our ambitions in constructing the framework.
For the purposes of transparency, professional exchange, and

improvement of our methodology, Table 3 gives the detailed
scorings for the six pilot cases. Commentators with special insight
may disagree on the inclusion or the particular focus of one or more
of the 54 individual items and they may also disagree on the
individual scores tentatively allocated. We are happy to be corrected
if incorrect or arguable scores have been allocated in any of the
cases. The weighting of the various areas in established as well as
fledgling democracies is also not above criticism, and it may
eventually appear in a different form than what one now sees in
Table 2.
Despite our willingness to consider all objections or suggestions

for improvement very seriously, we are comfortable with the
resulting scores and their assessment of the level of electoral quality
in the polities and elections included here.
Table 3 : Performance indicator scores for six pilot case elections

Performance indicator Denmark East South South
Australia 2001 Timor Africa Africa Zimbabwe
2001 2001 1994 2004 2002
1. Legal framework :
1.1. Consolidated legal foundation ? 2 3 3 3 2 1
1.2. Comprehensive electoral time table ? 3 3 3 3 3 1
1.3 Elections held without extra-legislative
delay ? 3 3 3 3 3 3
1.4. Can electoral legislation
be implemented ? 3 3 2 2 2 1
1.5 Electoral framework generally
considered legitimate ? 3 3 3 2 3 1
Intermediate step scores 9.3 10.0 9.3 8.7 8.7 4.7
2. Electoral management :
2.1. Perceived degree of EMB legitimacy? 3 3 3 3 3 1
2.2. Perceived degree of EMB impartiality? 3 3 3 3 2 0
2.3. Perceived degree of quality in EMB
service delivery? 3 3 2 1 3 1
2.4. Perceived degree of EMB transparency? 1 2 3 2 2 0
3. Constituency and polling district demarcation :
3.1. Constituency structure reasonable
and broadly accepted? 3 3 3 2 2 2
3.2. Constituency and lower level district
information easily available? 3 3 2 2 3 2
3.3. Fair system for boundary delimitation
and seat allocation in place? 3 3 3 3 3 2
4. Voter education :
4.1. Voter education provided to voters
in need? 2 2 1 2 1 1
4.2. At-risk groups with needs identified
and needs addressed? 2 2 2 2 2 1
4.3. Percentage of ballots valid? 1 3 2 3 3 2
4.4. Turnout among first time voters,
in terms of voting age population (VAP) 2 2 3 2 1 2
5. Voter registration :
5.1. Registration rate among VAP? 3 3 3 3 2 1
5.2. Register free from serious bias? 3 3 3 3 2 0
5.3. Level of registration inconvenience? 3 3 0 3 3 2
5.4. Mechanisms for ensuring accuracy
of registers? 3 3 2 1 2 0
5.5. Mechanisms for ensuring public
confidence in register? 2 3 2 1 2 0
5.6. Fair registration criteria, compliant with
international standards? 3 3 3 2 3 1

2001 2001 1994 2004 2002
6. Access to and design of ballot paper.

Party and candidate nomination and registration :
6.1. Parties allowed, and can register
without bias? 3 3 3 3 3 3
6.2. Independent candidates allowed? 3 3 3 0 0 3
6.3. Method of voting or ballot design
non-discriminatory? 3 3 3 3 3 3
7. Campaign regulation :
7.1. Systems to provide access to state-owned
media employed equitably? 3 3 3 3 2 0
7.2. If a system of public funding of parties
exists, is it implemented? 3 3 3 3 3 3
7.3. Independent mechanism for identifying
bias in state media, and correction
of such bias? 2 2 3 2 2 0
7.4. State resources used properly by parties? 2 3 3 2 2 0
8. Polling :
8.1. Turnout as per cent of registration? 3 3 3 3 2 2
8.2. Turnout as per cent of VAP? 3 3 2 3 2 2
8.3. Low level of election-related violence? 3 3 3 1 2 0
8.4. Polling according to rules
and regulations? 3 3 3 3 3 2
8.5. Systems for rectification of fraudulent
voting? 1 2 3 2 2 1
8.6. Polling accessible, secure, and secret? 3 3 3 2 3 1
8.7. If desire for election observation,
is it satisfied? 3 3 3 3 3 0
8.8. If there is desire for party election
observation, is it satisfied? 3 3 3 3 2 1
8.9. Anti-vote-buying systems in place? 3 3 2 3 3 2
8.10.Level of intimidation? 3 3 3 1 2 0
9. Counting and tabulating the vote :
9.1 Count conducted with integrity
and accuracy? 3 3 3 1 3 1
9.2. Tabulation transparent and accurate? 3 3 3 2 3 0
9.3. Results easily available? 3 3 3 2 3 1
9.4. Counting with no undue delay? 3 3 3 2 3 3
9.5. Are parties and candidates allowed
to observe the count? 3 3 2 3 3 1

2001 2001 1994 2004 2002
10. Resolving election related disputes.

Verification of final results and certification :
10.1. Serious complaints accepted
for adjudication? 3 3 3 3 3 3
10.2. Appropriate dispute resolution
mechanism? 3 3 3 3 3 0
10.3. Disputes settled with no undue delay? 3 3 3 3 3 0
10.4. Election observation confirmation
if no serious problems? 3 3 3 2 3 0
10.5. Is timeframe for constitution
of parliament (if any) met? 3 3 3 3 3 3
10.6. Can persons with reasonable cases pursue
them without personal or financial risks? 2 3 3 2 2 0
10.7. Are seats taken only by people
properly elected? 3 3 3 3 3 3
11. Post-election procedures :
11.1. Election statistics available with
no serious delay? 3 3 3 2 3 1
11.2. Are EMBs audited and results
made publicly known? 3 3 1 3 3 1
11.3. Is there capacity for election review? 3 3 2 3 3 1
Weighted and standardized scores 89 93 83 72 77 41
The legitimacy and broad acceptance of any election depends on

the quality of the election management process, but only to a
certain degree. A fairly clean, well-managed election may
produce results completely unacceptable to losers in one country,
while a deeply-flawed election may be accepted in another. There
are a host of political, strategic and other factors that come into
elite legitimization of an election, which go well beyond the
process itself.
Therefore, it is not sensible to establish a certain total aggregate

score as the dividing line between legitimate and illegitimate
elections, where the latter then would be rejected. As argued by
Horacio Boneo at the IPU round table, two cases could both score
75 out of a 100 and have problems in quite different areas. It
makes more sense to sensitize the scoring methodology to give
primacy to the most important electoral process components in
both established and fledgling democracies, but even so local

realities will impact greatly on the perception of how good an
election (and the administration thereof) actually is (or was).
The final weighted and standardized scores offered in Table 3

do not constitute the final word in our analysis. They are included
for purposes of transparency and as a further indicator of election
and election administration quality both over time and across
nations. The intermediate standardized scores for each of the
eleven steps are also included for the purpose of more focused
comparisons.
The aggregate scores make sense intuitively. Yet in our view

(which was shared by participants at the round table), the
individual (and intermediate) scores are considerably more
interesting. They offer particular insight in comparing elections in
a specified country, point out areas where improvements in
election administration are particularly needed, and help observers
assess an elections influence on political legitimacy and
democratization.
As argued by Eric Rudenshiold of IFES during the IPU round table,

the analysis becomes particularly tricky when a democracys status
changes from fledgling to established and assessment scores
must be altered. One possibility is to introduce a system with finer
categorizations (containing three or more categories) in the
context of developing the overall analytical framework. Such
changes will obviously complicate the over-time comparisons,
with the consequence being that category weightings within a
country may change as time progresses.
Conclusion
The framework functions well and offers a useful starting point for
future attempts of identifying levels of electoral governance
performance in all kinds of democracies. It provides a tool that
enables us to assess electoral processes in a more systematic way
than has previously been possible, allowing for comparisons of
electoral quality within and across regions and across time. In itself,
the implementation of this approach should prove useful. At the
same time, however, its implementation may also advance our
understanding of what fosters the development and stability of
democratic legitimacy.
We invite general comments on the framework presented here,

along with more specific evaluations that may contribute to a
greater understanding of our analysis of the six elections and the
assessments and scorings documented in Table 3. A subsequent step
is to invite interested colleagues, election practitioners, and others
to join in on our efforts to evaluate an even broader coverage of
countries and elections than are offered in this paper. This kind of
cooperation is necessary to ensuring the success of such a project,
one that solicits country- and case-specific expertise and insight.
We foresee the formation of assessment teams (also expert

teams) for individual countries, consisting of two to three
international and two to three domestic assessors coming together
in a specified country to discuss their case(s) and its performance in
relation to the various indicators. The basic guidance in this work
will come from a general (first) manual to be developed within the
project providing the cues for the decisions (in line with some of
the indications in Table 1 above, but obviously more detailed and
building on established international standards, when such
standards exist, a point strongly underlined by Ron Gould at the IPU
round table). This should allow the various expert teams to work
towards a common goal. At the same time, however, we foresee
the analyses going beyond the simple scoring mechanisms outline
above. Behind each score, we will expect an indication in clear
language of the reasons for the level suggested. This
documentation should be available in writing and accessible to
interested individuals via a home page on the Internet.
Based on our initial contacts in a number of countries, we have

become convinced that considerable enthusiasm exists for gaining
access to this kind of instrument. While interest is evident in
academic circles, we expect election administrators to express an
even greater desire to participate, given their genuine interest in
designating areas where improvement is needed, whether in
established or in fledgling democracies. Perhaps of greatest
importance, we expect that election observers and their various
organizations can also make use of such an instrument, providing
a better means for assessing a given election and facilitating
meaningful comparisons between elections.
Once this work has developed further, a more definitive manual

will be produced for use in assessing any election where domestic
and/or international observer organizations and political actors,

etc., express interest in systematically judging an electoral event
across systems, within and across regions, and over time.
About the authors : Jrgen Elklit is Professor in the Department

of Political Science at the University of Aarhus, Denmark. He has
acted as an advisor on election assistance, election administration,
electoral systems and democratization in Africa, Europe, and Asia.
Andrew Reynolds is Associate Professor in the Department of

Political Science at the University of North Carolina in the United
States. He has served as a consultant on electoral and constitutional
design issues in Africa, Europe, the Pacific, and South America.
References :
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assessment, Democratization, 11 (2) : 1-17.
Burnell, Peter (2002) Zambias 2001 elections : The tyranny of small decisions,
non-decisions and not decisions, Third World Quarterly, 23 (6 ) : 1103-20.
Diamond, Larry and Marc F. Plattner (eds.) (2002) The Global Divergence of
Democracies, Baltimore : The Johns Hopkins University Press.
Elklit, Jrgen (1999) Electoral institutional change and democratization : You
can lead a horse to water, but you cant make it drink, Democratization, 6 (4) :
28-51.
Elklit, Jrgen (2002) Lesotho 2002 : Africas first MMP elections, Journal of
African Elections, 1 (2) : 1-10.
Elklit, Jrgen and Andrew Reynolds (2001) Analysing the impact of election
administration on democratic politics, Representation, 38 (1) : 3-10.
Elklit, Jrgen and Andrew Reynolds (2002) The impact of election
administration on the legitimacy of emerging democracies : A new comparative
politics research agenda, Commonwealth and Comparative Studies, 40 (2) :
86-119.
Elklit, Jrgen and Andrew Reynolds (2005) A framework for the systematic
study of election quality, Democratization, 12 (2) : 1-16.
Elklit, Jrgen and Palle Svensson (1997) What makes elections free and fair?,
Journal of Democracy, 8 (3) : 32-46. Reprinted in Diamond and Plattner (eds.)
(2002), pp. 200-14.
Goodwin-Gill, Guy S. (1994) Free and Fair Elections : International Law and
Practice, Geneva : Inter-Parliamentary Union.
Kamemba, Kambuya (2002) Looking at the management of the 2001 Zambian
tripartite elections, Journal of African Elections, 1 (2) : 11-26.
Kjr, Mette (2004) Governance, Cambridge : Polity.
Lehoucq, Fabrice and David L. Wall (2004) Explaining voter turnout rates in
new democracies: Guatemala, Electoral Studies, 23 (3) : 485-500.
Lpez-Pintor, Raphael (2000) Electoral Management Bodies as Institutions of
Governance, New York : UNDP.
Lyons, Terrence (2004) Post-conflict elections and the process of demilitarizing
politics : The role of the electoral administration, Democratization, 11 (3) :
36-62.
Munck, Gerardo L. and Jay Verkuilen (2004) Conceptualizing and measuring
democracy : Evaluating alternative indices, Comparative Political Studies,
35 (1) : 5-34.
Mozaffar, Shaheen (2002) Patterns of electoral governance in Africas
emerging democracies, International Political Science Review, 23 (1) : 85-101.
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Norris, Pippa (2004) Electoral Engineering : Voting rules and Political Behavior,
Cambridge: Cambridge University Press.
Padmanabhan, Vijay (2002) Democracys Baby Blocks: South Africas Electoral
Commissions, New York University Law Review, 77 : 1157-94.
Schedler, Andreas (2002) The nested games of democratization by elections,
International Political Science Review, 23 (1) : 103-22.
Smith, Daniel A. (2002) Consolidating democracy? The structural
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Notes :
1
Munck and Verkuilen (2004) demonstrate the various problems of
conceptualizing and measuring democracy one finds in the different indices
of democracy currently available. A comparison with their stringent approach
and useful analyses of previous attempts of indexation is somewhat
discouraging because it is not (yet?) possible to live up to the high and very
reasonable standards to which they subscribe. However, the framework
suggested is only a first attempt to deal with some specific issues and the
outcome should in any case be assessed on whatever merits it has.
2
As reflected in publications such as Principles for Election Management,
Monitoring, and Observation in the SADC Region (Johannesburg: Electoral
Institute for Southern Africa, 2004) and International Electoral Standards.
Guidelines for reviewing the legal framework of elections (Stockholm:
International IDEA, 2002).
July 2013, Volume 24, Number 3 $12.00
Latin Americas Authoritarian Drift

Kurt Weyland Carlos de la Torre Miriam Kornblith
Putin versus Civil Society

Leon Aron Miriam Lanskoy & Elspeth Suthers
Kenyas 2013 Elections

Joel D. Barkan James D. Long, Karuti Kanyinga,
Karen E. Ferree, and Clark Gibson
The Durability of Revolutionary Regimes

Steven Levitsky & Lucan Way
Kishore Mahbubanis World

Donald K. Emmerson
The Legacy of Arab Autocracy

Daniel Brumberg Frdric Volpi Frederic Wehrey Sean L. Yom
Kenyas 2013 Elections
Technology
Is Not DemocracY
Joel D. Barkan
Joel D. Barkan is professor emeritus of political science at the Univer-

sity of Iowa and nonresident senior associate with the Africa program
of the Center for Strategic and International Studies. He is the author
of the 2011 CSIS report Kenya: Assessing Risks to Stability.
E lections are a cornerstone of democracy, but elections that are flawed

or perceived to be flawed retard rather than advance democratization.
Elections work as a procedure to select state officials only when the
losers accept the results as the outcomes of a legitimate process. This is
particularly true when the electoral contest is close and for the highest
office in the land, as was the case in Kenya in 2007 and 2013.
The 2013 elections were Kenyas fifth since the country returned to
multiparty politics and the direct election of its president in 1992. Three
of the preceding four elections were marked by violence. But in only
onethe 2007 presidential contestwas the violence triggered by deep
dissatisfaction with the electoral process and the electoral commission
that administered the balloting. In that election, the losing candidate,
Raila Odinga of the Orange Democratic Movement (ODM), had led ev-
ery preelection public-opinion poll by decisive margins. He had also
led in the reporting of more than two-thirds of the polling stations by a
clear margin of 400,000 votes. Yet he lost the election by a margin of
2.3 percent (46.4 to 44.1) to Mwai Kibaki, the incumbent president, who
was hastily sworn into office behind closed doors following a media
blackout on the last day of the count. The rest is well known: Odinga
supporters attacked Kibaki supporters, who responded in kind. By the
time the violence was all over, more than 1,100 people were dead, and
over 660,000 had been displaced from their homes.
The 2007 election started off as one of the most peaceful in Kenyas
history. Turnout was high, and, despite minor logistical glitches, the
election proceeded smoothly through the vote count and the announce-
ment of the results at more than 24,000 polling stations. The agents
Journal of Democracy Volume 24, Number 3 July 2013

2013 National Endowment for Democracy and The Johns Hopkins University Press
Joel D. Barkan 157
of losing candidates, though disappointed, generally accepted the out-

comes with grace. The problem was with the transmission of the re-
sults from the polling stations to the district electoral headquarters, the
tabulation of the polling-station results at the district level, and finally
the onward transmission of the vote count to the headquarters of the
Electoral Commission of Kenya (ECK) in Nairobi. The chair of the ECK
publicly acknowledged that he had lost contact with senior staff at the
district level, where the votes from all polling stations were first aggre-
gated before being forwarded to Nairobi. Yet Kibaki, who had packed
the ECK with his own appointees, was soon declared the winner under
mysterious circumstances. Not only was there a breakdown in commu-
nication and alleged fraud in reporting the vote, but the vote totals for
many areas exceeded the number of registered voters.
In the wake of the violence and the National Accord that restored peace
in February 2008, the ECK was disbanded and replaced by two interim
commissionsone for the delimitation of constituency boundaries and
another for administering elections. Following the August 2010 referen-
dum approving the new constitution, an exhaustive process began to se-
lect and appoint a single new Independent Election and Boundaries Com-
mission (IEBC), as specified in the document. An elaborate public-vetting
process ensued to ensure the independence, competence, and legitimacy
of the IEBC for the next elections. The IEBC then went about delimit-
ing 290 new constituencies for the National Assembly, as required by
the new constitution. The IEBC also conducted several parliamentary by-
elections, all of which went well and generated no postelection disputes.
Public confidence in the IEBC was high. According to several public-
opinion surveys, 80 percent of the public trusted the IEBCa higher level
of public confidence than for any other major government institution, in-
cluding the presidency, the judiciary, and the parliament.
Embracing Technology
As the IEBC prepared for the next election, it looked to the latest
technology to avoid repeating the two biggest failings of the 2007 poll:
1) The lack of an accurate, up-to-date, and secure register purged of de-
ceased Kenyans; and 2) the failure to transmit the vote accurately from
thousands of polling stations to constituency counting centers, to ag-
gregate those results properly, and then to forward them on to the ECK
headquarters for final tabulation and the announcement of the outcomes.
Whereas Kenyas previous elections had relied on a voter register
compiled from paper forms that were later scanned into a computer
database, the new system would be completely computerized from the
point of registration to the production of the voter list. Most important,
to guarantee against possible fraud the new national register would in-
clude not only the names, national identification numbers, gender, and
addresses of those registered, but also biometric data in the form of

digitally scanned fingerprints and a digital photo of each person regis-
tered. This biometric voter-registration
system known as BVR would pre-
Technology would ensure vent fraud by requiring all voters ar-
an election that was free riving at their assigned polling station
and fair and thus legiti- on election day to verify their identity
by having their fingerprints digitally
mate. Losing candidates
rescanned and compared with the bio-
would accept the out-
metric data stored on the computer-
come without claiming ized national register. As a safeguard
that it had been rigged. against multiple voting, the national
database would be updated throughout
election day. Once a voter signed in at
the polls, his or her presence would be recorded and struck off the list
of those eligible to vote.
The use of the BVR and national database would also enable the
IEBC and the public to monitor the progress of the vote in real time.
The system would provide a national moving-picture map of turnout
(using geographic information system software) showing what percent-
age of the electorate had voted in each parliamentary constituency and
county and in the country as a whole. This would all be accessible on-
linethe ultimate in transparency.
Finally, the BVR and the computerized voter-ID system would be
complemented by another hi-tech solutiona computerized results-
reporting system that would ensure the fast and accurate transmission of
the vote from 33,100 polling stations to the IEBCs reporting headquar-
ters in Nairobi. The system would include 33,100 mobile phones pro-
grammed with a special application designed for this purpose. The presid-
ing officers at each polling station would be issued a phone with a unique
password that they would use to securely log in to the IEBCs central
computer and text the results for each of the six offices being contested
in the election.1 The data from each polling station would be captured by
the IEBCs computer servers, after which they would be aggregated for
each electoral contest and made available immediately online and to the
press. The system was highly sophisticated in order for the IEBCs servers
to capture, tally, and keep separate the results for the six different offices
being filled. For the presidential contest and other high-profile races, such
as those for the new governorships, the results would also be displayed in
real time on big screens at the IEBC and broadcast by Kenyas television
networks. This, too, would be the ultimate in transparency.
By opting for these systems, the IEBC sought a twenty-first-centu-
ry solution to Kenyas history of electoral mismanagement and fraud.
Technology would ensure an election that was free and fair and thus
legitimate in the eyes of the people. Losing candidates would accept the
Joel D. Barkan 159
outcome without claiming that it had been rigged. The IEBC would
maintain its legitimacy. And, most important, those elected would enter
office with the full authority of their mandate.
The IEBCs approach was not surprising given the recent strong em-
brace of technology by Kenyas private sector. The adoption of mobile
phones and related applications in Kenya is arguably the most impressive in
all of Africa. Out of Kenyas population of 43 million, there are more than
38 million mobile-phone usersnearly every adult, rich or poor, now has
one. Mobile-phone networks cover all but the sparsely populated northern
areas of the country. The development and spread of the Safaricom mobile
networks M-pesa money-transfer system, along with its imitation by other
mobile-phone providers and banks, has been a model for other developing
countries. For the first time, millions of Kenyans, including those in the
informal sector, have become part of the national economy. Mobile-phone
coverage has improved the lot of small producers, such as the now-myth-
ical fisherwoman on the shores of Lake Victoria who brings fresh fish to
the Kisumu market on demand via mobile-phone orders rather than taking
her entire catch to rot in the market from dawn until dusk. Small entre-
preneurs using solar charging devices have set up shop in areas without
electricity to facilitate the use of mobile phones across the countryside. In
Kenya, new communication technologies have displaced the corrupt and
poorly maintained state-owned landline phone system inherited from the
big man era of former president Daniel arap Moi.
Kenya also has one of the highest rates of Internet penetration in
Africa. Roughly a fifth of the population has regular Internet access, a
rate that is rising as fiber-optic cable is laid across Nairobi and between
major population centers. Kenyas domestic Internet system is linked to
the outside world by two undersea fiber-optic cables, with a third on the
way. None of this connectivity existed five years ago. Kenyas press,
arguably the freest and most sophisticated in Africa, is available online
to Kenyans at home and to the large diaspora abroad. Kenyas television
stations are increasingly streaming content online. The countrys back
office and software industries, though dwarfed by Indias, are beginning
to establish themselves in world and regional markets. As noted earlier,
Kenyas software-development capacity has powered the expansion of
financial services not only in Kenya but increasingly across Eastern Af-
rica as Kenyan banks move into adjacent markets.2
The World Bank estimates that information technology (IT) now ac-
counts for a full percentage point of Kenyas recent annual economic
growth of 4 to 6 percent. Its development and spread is driven mainly
by a young generation of entrepreneurs and professionals who are part
of Kenyas expanding urban middle class. Given this culture of tech-
nology adoption, it is not surprising that the IEBCitself chaired by a
43-year-old lawyeropted for the latest. Though not articulated in
these words, technology was viewed as a shortcut to democracy.
Kenyas political classincluding Kibaki and Odinga, president and

prime minister, respectively, at the timesupported the IEBCs plans
for the BVR, the computerized national register of voters, and the elec-
tronic results-reporting system. Notwithstanding their deep suspicions
lingering from the 2007 polls, Kenyas politicians believed that the new
technologies would save the country from another election debacle.
Problems of Implementation
Though tantalizing, the BVR system was expensive and logistically
complicated to implement. First, the IEBC needed to acquire and program
15,000 laptop computers, each of which would be equipped with digital
scanners to scan the fingerprints of those registering to vote. The equip-
ment also included cameras to record digital photos of those registered
and appropriate software to facilitate quick and reliable use of the equip-
ment by election officials at each registration station. Generators were also
needed to guarantee continuous power for the laptops used in areas without
electricity. The IEBC also recruited and trained 30,000 workers to con-
duct the registrationtwo for each registration centerso that the centers
could operate seven days a week during the month-long enrollment period.
The choice of BVR also meant that a second set of laptops and finger-
print scanners needed to be purchased and loaded with the appropriate
software as well as the national-register data so that voters could be prop-
erly identified on election day. Known as electronic voter-identification
devices or EVIDs, 33,100 were eventually purchased by the IEBC, one
for each polling station. Because generators were cumbersome and ex-
pensive, the IEBC decided instead to equip each EVID laptop with three
rechargeable batteries to ensure sufficient power on election day. The
number of EVIDs was more than double the number of laptops required
for the BVR because the number of polling stations was more than double
the number of voter-registration centers.3 As noted previously, the results-
reporting system also required the procurement of 33,100 mobile phones.
The final cost of the BVR ballooned to over US$72 million, while the es-
timated cost of the EVIDs was between $27.2 and $34 million. At roughly
$20 per mobile phone, the estimated cost of the results-reporting system,
including the central server, was relatively cheap, no more than $1 million.
The total cost of all the computers, mobile phones, and accessory equipment
is estimated to have run as high as $120 millionabout $10 for each of the
12.2 million Kenyans who ultimately took part in the election. The total
equipment cost, however, did not include all the other expenses associated
with the election, such as the operating costs of the IEBC itself, salaries for
the officials who registered voters and staffed the polling stations on elec-
tion day, and the cost of printing ballots, ballot boxes, and other material.
The cost of going high-tech also presented potential equipment pro-
viders with the prospect of highly profitable contracts. The result was
Joel D. Barkan 161
a procurement nightmare. The IEBC received bids to supply the BVR

equipment from 27 contractors in December 2011, more than a year
before the elections. But the IEBC then extended the deadline for bids
by 90 days and dawdled until May 2012 in reviewing them. All but four
bids were judged to be technically flawed, while those that remained
were deemed wanting on cost and other fiduciary grounds. Thus in early
August 2012, the original target date to begin registration, the IEBC was
faced with the challenge of starting over.
At this point, the technical advisors to the Commission provided by the
International Foundation for Electoral Systems (IFES) and UNDP advised
the IEBC to abandon the BVR and replace it with a highly reliable and
significantly cheaper alternative, Optical Marked Registration (OMR). A
manual system, OMR records a prospective voters name, age, national
ID number, and other information by filling in the blanks on a preprinted
form, much as one fills in the answer sheet for an electronically graded
examination. The system requires no special equipment or electric power
at the locations where the data is collected because the information sheets
completed for each registrant are then processed by a small number of
optical scanners at a single central facility or small group of disbursed
facilities to produce the voter roll. The OMR process requires less training
and, at an estimated cost of $20 million, OMR costs less than a third of
what the BVR did. To their credit, IEBC chairman Issack Hassan and the
other members agreed to the switch. Unfortunately, they were overruled
by President Kibaki and his cabinet, including Prime Minister Odinga.
A second round of procurement for the BVR thus began in Septem-
ber, at which point the Canadian Commercial Corporation stepped for-
ward to offer the IEBC assistance in obtaining the necessary equipment.
Though initially understood by the IEBC to be in-kind assistance or a
loan from the Canadian government at concessional rates, the deal was
in fact a commercial loan to the Kenyan government at a 5 percent inter-
est rate. The loan was also tied to the purchase of Canadian equipment,
though the eventual supplier, Safran Morpho, was actually a French
company that maintained a subsidiary in Montreal. Financing for the
deal was not finalized until late October after lengthy negotiations that
denied Safran Morpho proprietary rights to the registration database.4
Of the 15,000 registration kits, none arrived in Kenya until November
5, four months before the election. The registration process finally got
underway on November 19, more than three months late and now slated
for a period of thirty rather than sixty days as required by law.
To the surprise of many knowledgeable observers, the BVR process
went fairly smoothly. Yet because of the late start and compressed time
period, the IEBC had registered only 14.3 million people, or two-thirds
of the estimated 21.5 million Kenyans eligible to vote, by the close of
registration on December 18. Using outdated census figures, the IEBC
declared victory by claiming to have registered 79 percent of those eli-
TablePercentage of Constituencies by Level of Success at

Reporting Results Electronically
Constituencies where: Presidency Parliament
020% of polling stations reported successfully 27 59
Number of observations (290) (290)
gible; somewhat surprisingly, it was not criticized for what was consid-
ered by seasoned observers to be a distortion of the truth.
Once registration was complete, the IEBC had little more than two
months to finish all other preparations for the poll. The Commission was
in a race against the clock. The IEBC thus quickly went about procur-
ing the ballots (from a British firm), the EVIDs, and the mobile phones
required for the results-reporting system. Because time was short, the
normal tendering and bidding process was short circuited.
The EVIDs, which were supplied by the South African firm Face Tech-
nologies Ltd., arrived less than two weeks before the election. Procurement-
related delays once again held up delivery and also changed the configu-
ration of the equipment. As noted previously, for the EVIDs to work as
intended, the laptops had to be equipped with the proper software and a
copy of the national voter register, including the BVR data. IEBC staff
toiled around the clock in a warehouse the week before the election to load
each of the 33,100 laptops. They finally finished on Saturday, March 2, less
than 48 hours before the polling stations opened on Monday, March 4. The
machines were to be sent out with three fully charged batteries for each,
but in the rush most were shipped to their assigned polling stations with
only one battery fully charged, resulting in a loss of power and complete
breakdown. Half of the EVIDs stopped working midway through election
day. The IEBC responded in the only way that it could, by abandoning the
system and reverting to a backup paper registera printout of the informa-
tion and photo contained in the computerized register but not the fingerprint
scans central to the BVR. Presiding officers at nearly all polling stations
reacted with aplomb, perhaps because they had always been skeptical of
whether the EVIDs would work. But they had, in fact, worked as designed
and touteduntil they ran out of juice! After that, the election was depen-
dent on the resourcefulness of the presiding officers in the field.
A similar problem befell the special mobile phones with which the
presiding officer at each polling station was to transmit the vote totals to
IEBC headquarters. In the rush to distribute the phones, some presiding
officers were not given the password needed to log in to the IEBCs cen-
tral server. Others were not provided with proper SIM cards to access
the mobile-phone network in their area. Still others were given phones
whose batteries had not been fully charged.
Joel D. Barkan 163
Table 1 above summarizes the extent of the breakdown. In only 13

percent of Kenyas 290 constituencies were 80 percent or more of poll-
ing stations able to report the vote for president electronically; the level
of successful transmissions for the parliamentary votes was even less.
The electronic results-reporting system was thus also abandoned a day
and a half into the count, while the Kenyan public was avidly follow-
ing the results on television and online. As the hours passed, the system
first slowed and then stopped updating the results. Before that, however,
television viewers and commentators had noticed that the number of
rejected ballots for the presidential race was approaching 5 percent
of the total votes cast, an unusually high figure that raised doubts over
whether Uhuru Kenyatta could pass the threshold of 50 percent plus 1
vote. The IEBC acknowledged that it had discovered a software error
that had mysteriously multiplied the number of rejected ballots by eight.
Here, too, the promise of technology proved too good to be true. Indi-
vidual components of the system had tested fine. Scaled-down versions
of the system had also tested fine.5 But in the rush to put the many thou-
sands of moving parts together, the system as a whole failed. Simply
stated, the IEBC was overwhelmed by the challenge of completing too
many tasks in too short a time. In the process, the Commissions cred-
ibility and the credibility of the election itself took a hit.6
Lessons Learned
The foregoing discussion would be interesting only to Kenyans and
Kenya watchers were it not for the broader lessons to be learned. There
are severalfor Kenya and for other countries contemplating high-tech
solutions to their own election problems. There are also lessons for the
international community, which has become heavily involved in promot-
ing these and other solutions, such as parallel vote tabulations (PVTs), to
enhance the credibility and fairness of elections in emerging democracies.
For Kenya and Other High-Tech Adopters: Four lessons are relevant
for the future of election administration in Kenya. First, the challenge
is not one of making the technology work, but rather one of embedding
technology in an organization involving thousands of people that oper-
ates for only short periods of timethat is, the month during which voter
registration takes place, election day itself, and the period immediately
thereafter. In a country like Kenya, where mobile phones and computers
are part of daily life, the challenge is not a tech challenge, but a human
systems and managerial one. Second, like institution-building generally,
building a viable and independent election commission that ticks along
like the proverbial Swiss watch takes time. The process cannot be rushed.
Third, Kenyans, especially Kenyan professionals and members of the
political class, need to make two cultural adjustments: 1) Notwithstanding
the many marvelous things that IT has brought to the country over the past
decade, Kenyans must maintain a healthy skepticism and ask hard ques-
tions, particularly the question of whether the most sophisticated forms of
technology (BVR) are more appropriate than less-advanced forms that are
easier to use, less expensive, and more reliable (OMR); and 2) they must
resist the hakuna mutata (Swahili for no problem) mantra that enables
millions of Kenyans, especially the poor, to get through lifes daily strug-
gles, but which grossly minimizes the challenges associated with imple-
menting high-tech solutions, especially the requirement of time. This was,
arguably, the most serious failing of the IEBCthe repeated overestima-
tion of what could be accomplished by election day, even as the original
deadlines for setting up the IT systems for voter registration, voter sign-in,
and results-reporting continued to be missed.
The fourth lesson relates to procurement. By opting to go high-tech,
the IEBC compounded the first three challenges because the high cost of
equipment attracted a wave of profiteers (some qualified, but most not)
who made big promises in order to land lucrative contracts. The first at-
tempt at procuring equipment for the BVR sounded the alarm loud and
clear, but the IEBC ignored it. When procuring such equipment, there
must be a set plan for a lengthy and proper review of every proposal
before a contract is signed so that all the components can be on site
months before they are used. Only then can technology be successfully
embedded in the organization recruited to carry out the required tasks.
For the International Aid Community: Having spent hundreds of
millions of dollars to support multiparty elections in Kenya and other
countries since the early 1990s, the international donor community,
especially the bilateral-aid agencies, needs to take stock of what has
been accomplished and where this enterprise is headed. Only a minor-
ity of elections in emerging democracies are regarded as competently
run free and fair contests. Moreover, the outcomes of these elections
and the manner in which they are conducted are largely a function of
variables that are outside donor control. Nearly all African countries
have conducted four or five multiparty elections since the resumption
of multiparty politics two decades ago. It is no longer an option for the
international community to conduct elections on behalf of African states
as it did in Angola and Mozambique in the early 1990s, as that would be
a violation of national sovereignty and pride. At best, the international
community can assist from the sidelines and at the margins.
There are four broad types of assistance that the international com-
munity can appropriately provide, and Kenya has over the years re-
ceived every one: 1) technical assistance to the election commission
in designing better ways to conduct election-related processes and in
building the organizational capacity of the election-management body;
2) funds or equipment for conducting the election; 3) financial and tech-
nical support to civil-society organizations for mounting voter-educa-
tion programs and for monitoring the electoral process, from the earliest
Joel D. Barkan 165
preparations a year or more before the event through the vote count; and
4) support for the presence of international observers both to monitor the
election and to backstop domestic-observer operations. None of these
options involves taking direct control of the process. At the same time,
none has the ability to shape the local culture of citizens, political elites,
or the heads and members of electoral commissions.
Given these realities, donors should be more cautious than they have
been in the past, especially when it comes to recommending or financ-
ing high-tech solutions, given the procurement baggage that they bring.
In the Kenyan case, the technical advisors provided by UNDP and IFES
(which was funded by USAID) advised against the most high-tech op-
tion, but that advice was turned down. Should those advisors then have
been withdrawn? Were they right to remain and give their best efforts
to make the Kenyans choice work? Should the Canadian Commercial
Corporation have financed the deal for the BVR? The international do-
nor community needs to develop a checklist of requirements before be-
coming part of a process that it can never control. Doing no harm
should be the first item on the list.
NOTES
The author gratefully acknowledges the comments made on an earlier draft of this article
by Michael Yard, senior elections advisor at IFES. Responsibility for this analysis, how-
ever, is the authors alone.
1. In addition to the presidency, Kenyans elected members of a new bicameral national

legislature, governors of the new counties, members of the new county assemblies, and 47
women county representatives.
2. An example is the expansion of Kenyan-owned Equity Bank into Uganda and South
Sudan, where it operates branches as well as a network of ATMs linked via satellite to its
central computer in Nairobi.
3. The number of polling stations was more than double the number of registration
centers because the registration process lasted one month, whereas the election took
place on one day. The number of polling stations was set at 33,100, on the calculation
that no station or voting stream should process more than 450 voters during the eleven-
hour period that the polls were open.
4. In its proposed contract to the IEBC and the Government of Kenya, Safran Morpho
included a clause asserting a proprietary right to all data captured during the registration
process. By demanding control of the database, the firm sought to lock in an advantage for
future work. The clause was ultimately dropped.
5. The results-reporting system was tested in a mock election two weeks before the
actual election, but with test data from only a handful of constituencies.
6. Defenders of the IEBC point out that the electronic results-reporting system was
from the start intended only to apprise Kenyans of the provisional results of the elec-
tion, and that the official count was always intended to be undertaken manually over a
period of one week. While true, the mere existence of the electronic results-reporting sys-
tem raised expectations on the part of both citizens and candidates that went unfulfilled.
January 2011, Volume 22, Number 1 $12.00
The Impact of the Economic Crisis

Marc F. Plattner Larry Diamond
Two Essays on Chinas Quest for Democracy

Liu Xiaobo
The Split in Arab Culture

Hicham Ben Abdallah El Alaoui
Migai Akech on the Uses and Abuses of Law in Africa

Harold Trinkunas & David Pion-Berlin on Latin American Security
Christoph Zrcher on Peacebuilding
Ngok Ma on Pact-Making in Hong Kong
Shadi Hamid on Islamist Parties
Latin America Goes Centrist

Michael Shifter Javier Corrales Eduardo Posada-Carbo
constraining government
power in africa
Migai Akech
Migai Akech is an independent legal scholar based in Nairobi, Ke-

nya. He has taught at the New York University School of Law and at
the University of Nairobi, where he was senior lecturer.His writings
include Privatization and Democracy in East Africa: The Promise of
Administrative Law (2009). He was a Reagan-Fascell Democracy Fel-
low at the National Endowment for Democracy in Washington, D.C.,
from October 2009 to February 2010.
Most analysts have long contended that African politics can largely
be explained by reference not to formal but to informal institutions, and
above all to neopatrimonialism. This term, coined in the early 1970s to
identify a seeming variation on Max Webers notion of patrimonialism,
is meant to identify a hybrid political regime in which informal patron-
client relationships both underlie and overshadow legal-rational norms.1
This literature privileges the patrimonial; legal-rational norms hardly
matter. According to this binary view in which the formal can be neatly
separated from the informal, Africa is a place where formal institu-
tional rules are largely irrelevant.2
Recent revisions of this dominant thesis acknowledge that formal in-
stitutions, or legal-rational norms, are beginning to matter. For example,
Daniel Posner and Daniel Young see the Nigerian Senates 2007 rejec-
tion of a proposed constitutional change that would have permitted Pres-
ident Olusegun Obasanjo a third term in office as a sign of formal rules
growing importance.3 In their view, it matters that leaders who want to
get around constitutional restrictions such as term limits feel the need to
use formal institutional channels rather than extraconstitutional ones.
But even as it acknowledges the growing importance of formal insti-
tutions, such revisionism asserts that progress remains marginal. Thus
Goran Hyden observes that political leaders are not yet bound by consti-
tutional norms.4 Further, Richard Joseph sees systems of personal rule
as continuing to clash with formal institutions.5 And Larry Diamond
Journal of Democracy Volume 22, Number 1 January 2011

2011 National Endowment for Democracy and The Johns Hopkins University Press
Migai Akech 97
contends that the political struggle in Africa remains very much a con-
flict between the rule of law and the rule of the person.6
The flaw in such accounts is their failure to grasp the role that law
and its guardian, the judiciary, now play and have always played in Af-
rican politics. Precisely because Africas formal legal systems tend to
feature broad grants of poorly circumscribed discretionary powers, law
and legal processes often become important tools in political contests.
Indeed, the sheer breadth of formal power is what facilitates informal
and unaccountable uses of it. Hence it is time that students of African
politics began paying closer attention to the nature and uses of formal
laws and legal processes. Empirical studies of how formal and informal
institutions interact are particularly needed, in part to help us understand
what sorts of reforms will help citizens to take part in politically salient
legal processes and hold them to account.
Neopatrimonialism has become a synonym for informalism and per-
sonal rule, or the antithesis of the rule of law. Thus Larry Diamond ob-
serves that in African politics, the informal always trumps the formal.7
Extreme, if not cynical, versions of this perspective even suggest that
formal rules are essentially epiphenomenal and unable to alter the un-
derlying structural dynamics of African politics.8
Neopatrimonialism is also synonymous with presidentialism. This is
the dominant form of government in Africa, where it is characterized by
the extreme concentration of power in the president, often known as the
Big Man. The Big Man often stays in power until the end of his life,
distributes public-sector jobs and resources to his followers, and makes
little distinction between public and private funds.9 His lieutenants act
as patrons to lower-level power brokers. Politics becomes a matter of
clientelism, patronage, and corrupt, lawless, personal rule.10
While it cannot be denied that neopatrimonialism and extremely pow-
erful presidencies are prevalent in Africa, the existing literature largely
fails to account for the role that formal law has played in the emergence
and persistence of these phenomena. Neopatrimonialism in Africa is not
merely evidence of the absence or failure of law; it is enabled or facili-
tated by formal law. Likewise, the African imperial presidency is not
epiphenomenal; it is a creature of formal law.
Formal laws facilitate neopatrimonialism for the simple reason that
discretion is inevitable in any grant of power, whether formal or infor-
mal. Indeed, the inevitability of discretion in any governance arrange-
ment means that neopatrimonialism will be a characteristic of all po-
litical systemsif only to the extent that everywhere political power is
exercised via both formal institutions and informal (or personal) rela-
tions. It can therefore be expected that some level of informalism will
be prevalent, if not desirable, in any political system. After all, politics
is about negotiation. Ideally, however, such informalism and the nego-
tiations that go with it are kept transparent and open to public scrutiny.
In established democracies, where this ideal is relatively well approxi-

mated, norms of transparency and accountability remain strong enough
to stop patrimonial institutions from dominating legal-rational ones, and
citizens enjoy fairly ample opportunity to question how political power
is being used. In African countries, by contrast, the legal-rational do-
main is not sufficiently transparent or accountable. This results in legal-
rational systemswith their already-broad grants of powerthat are
subject to penetration by patrimonial forces bent on self-serving rather
than public-regarding outcomes.
Examples abound of how African legal systems grant wide discre-
tionary powers. For example, statutory laws and regulations typically
grant officials broad powers without establishing effective procedural
mechanisms or limiting principles to circumscribe their exercise. In the
absence of effective regulation, the formal law therefore often aids the
practice and maintenance of neopatrimonialism.
Africas imperial presidencies are creatures of formal law. Soon after
independence, postcolonial elites set about carefully building up these
offices and their powers. Between 1960 and 1962 alone, thirteen newly
sovereign African states, beginning with Kwame Nkrumahs Ghana,
amended or replaced their independence constitutions in favor of new
rules of the game that centralized public power in a one-person presi-
dency.11 Such reconstitutions of the state were informed by an instru-
mental view of law that saw the primary purpose of the constitution as
facilitating state power, not controlling it. To the extent that the imperial
presidency is a creature of formal law, it should not be perceived as an
informal institution, which is how the conventional literature on neopat-
rimonialism often sees it.
Examining the ways in which law is used as an instrument in elec-
tions, state-security matters, media regulation, and control of the public
service will show that formal rules have always mattered in African
politics. Typically, those who wield political power straddle the divide
between patrimonialism and the realm of legal-rational norms, and will
base their actions on formal rules, informal considerations, or some
combination of the two, as expediency dictates.
For a long time, African political elites won or kept power through
extraconstitutional means, including violence and coups dtat. Increas-
ingly, however, they are capturing or retaining power through formal in-
stitutional channels such as elections. What explains this turn to formal
institutions? First, the democratization drives of the past two decades
have made citizens more politically potent and aware, leaving incum-
bents with fewer options. No longer able simply to ignore formal law,
incumbents must seek to manipulate it instead. Their turn to law is the
stuff of calculation, not conversion. Law has become the next political
frontier. Second, formal law may lend political decisions an air of legiti-
mate authority. If the law proclaims that a president has been validly
Migai Akech 99
elected or can serve a third term or can unilaterally name the members
of an electoral-oversight agency, then perhaps citizens will swallow the
pill thus handed to them.
Such calculations have probably figured in the decisions of presi-
dents who have sought third terms by
means of constitutional amendments.
In contemporary Africa, Some, such as Yoweri Museveni of
many nominally private Uganda, have succeeded. Others,
purveyors of physical- such as Nigerias Obasanjo and Zam-
bias Frederick Chiluba, have failed.
security services are joined
But even they have gone on to ma-
in complex networks nipulate formal rules in order to bar
involving formal and rivals or impose handpicked succes-
informal arrangements sors. In this way, Obasanjo stopped
alikewith the public his rival, Vice-President Abubakar
authorities. Atiku, from gaining the ruling par-
tys 2007 presidential nomination. In
this endeavor, Obasanjo received the
aid of the Independent National Electoral Commissiona body whose
members the president appoints by lawwhich issued politically mo-
tivated corruption indictments aimed at disqualifying Atiku and other
targeted candidates.12
In Zambia, President Chiluba disqualified his predecessor, Ken-
neth Kaunda, from contesting the presidency in 1996 by amending the
constitution to require Zambian ancestry of all presidential candidates.
Subsequently in 2001, when Chilubas efforts to amend the constitution
to allow a third term were thwarted, he nevertheless manipulated the
formal rules to guarantee victory for his handpicked successor, Levy
Mwanawasa. Thus voter registration, a process overseen by political ap-
pointees loyal to Chiluba, began suspiciously late in opposition strong-
holds. In Zambia, as in Nigeria a few years later, a sitting presidents
manipulation of formal rules had enabled him to shape the presidential
succession.
Kenyas bungled 2007 presidential elections can also be attributed to
presidential manipulation of the rules governing the electoral process.
Here, although an informal 1997 agreement of the so-called Inter-Par-
ties Parliamentary Group (IPPG) had stipulated that all major political
parties would thenceforth be represented on the Electoral Commission,
subsequent governments ignored the accord, arguing that it was not le-
gally binding. Thus President Mwai Kibaki opted to unilaterally appoint
members of the Electoral Commission in the months preceding the 2007
elections. As authority for this, he could cite the constitution, brushing
aside the IPPG agreement that he thought less likely to aid his quest for
a second term.
The instrumental use of the formal law is also prevalent in the state-
security domain. In many African countries, regime maintenance domi-

nates the realm of public-security enforcement. This means using a strict
law-and-order approach and repressive statutes to hold on to power in
the face of competition from groups and factions that reject the regimes
claims to legitimacy. Invariably, postauthoritarian governments in Afri-
ca have retained and zealously enforced many existing repressive laws.
When Museveni took power in Uganda in 1986, for example, he refused
to repeal any of the repressive laws then in place, and indeed reinforced
them.13 It is arguable that the neoliberal privatization reforms that came
along with the democratization initiatives of the early 1990s have also
made regime maintenance easier. Thus in contemporary Africa, many
nominally private purveyors of physical-security services are joined
in complex networksinvolving formal and informal arrangements
alikewith the public authorities. In these circumstances, distinguish-
ing public from private security actors can be difficult.
In order to escape scrutiny, many African governments employ pri-
vate security operatives. Indeed, examples of joint ventures between po-
litical actors (including government ministers) and private security or
military companies abound.14 Thus in Angola, a major private security
company counts prominent public officials among its shareholders. In
Uganda, a politically influential army officer also owned a security firm
that was often seen as an extension of the army. In Nigeria, public secu-
rity forces, including the military, have been integrated into the security
arrangements of the oil industry to an extent that makes it difficult to
determine where public policing ends and private security provision be-
gins. Such hybrid arrangements are found in Sierra Leone as well.
Typically, the laws of these countries do not forbid such straddling
of the formal-versus-informal divide. In practice, the tactic has proven a
useful tool for regime maintenance. Many of these countries have set up
(admittedly imperfect) systems of accountability in order to help regu-
late the relationship between the uniformed military and civilian public-
security agencies, but have no such accountability frameworks to gov-
ern how their militaries relate to private security providers. As private
entities, such providers can and often do seek to shield themselves from
scrutiny by resorting to claims of privacy and confidentiality. The dan-
ger that regimes and their state-security agencies can use such private
actors to evade legal obligations and do dirty work is obvious.
Exploiting Legal Gaps

Among the regimes which have thus exploited gaps in the law is
that of Musevenis National Resistance Movement (NRM) in Uganda.
There the method is to use private security agencies as operational arms
and task forces of formal security structures, with officials prepared to
disown their private partners should public disapproval be roused. Simi-
Migai Akech 101
lar trends can also be observed in neighboring Kenya, where vigilante

groups have been touted as carrying out a form of community policing.
They often consult with actual police officers, and there is a percep-
tion that the government condones vigilantism whenever it is politically
expedientnot least because members of certain vigilante groups may
carry illegal firearms without fear of arrest. In both countries, it is evi-
dent that such groups succeed only thanks to the support that the formal
security apparatus gives them.
Media activities too have become targets of legal manipulation. Elites
naturally fear having their illicit activities exposed by a vigorous media,
and eagerly seek ways to curb it. One useful tool is the body of criminal
libel statutes left over from the colonial era. In Ghana and Kenya, jour-
nalists have found themselves prosecuted under such laws on charges of
defaming the government and influential public figures. Constitutional
guarantees of press freedom notwithstanding, the courts in Ghana have
upheld such laws as necessary to protect the dignity of public office.15
Finally, there is the legal manipulation of the public service. In many
African countries, independence constitutions that mandated a non-
political public service were changed in short order to give presidents
vast powers over state agencies. These, accordingly, have often become
entangled in corrupt dealings and schemes for keeping incumbents in
power. Presidential authority typically includes the right to constitute
and abolish offices, and to name or dismiss their holders at will.
Anticorruption campaigns stand little chance in the face of laws that
bind civil servants to obey all orders from above (even if merely verbal
and patently illegal). As a result, even well-meaning public employees
can find themselves forced to act as accomplices in grand corruption
schemes meant to finance regime-maintenance projects. In Kenya, for
example, public servants who refuse to go along are transferred to ir-
relevant departments or fired, often without due process. Thus the head
of the Central Bank of Kenyas tender committee was promoted to the
newly created Ministry of Development of Northern Kenya after object-
ing to a new currency issue on the grounds that it violated the public-
procurement law. When public complaints arose, the attorney-general
quickly issued a legal opinion pointing out that, under the constitution,
the tender-committee chair served purely at the presidents pleasure.
Likewise in Nigeria, the head of the Economic and Financial Crimes
Commission, who by all accounts was doing a fine job of tackling cor-
ruption and had brought to justice many untouchable figures, was sent
on study leave by the president when political winds shifted.
Longstanding official-secrets acts and more recent ethics laws aug-
ment presidential control over the civil service in many an African
country. Thus Kenyas Public Officer Ethics Act is proving a double-
edged sword. Its declared purpose is to improve ethics standards, but
it contains provisionsincluding stiff fines or even a jail term for
divulg[ing] informationthat allow the president or his minions to

intimidate subordinates into silence. At the Kenyan central bank, for
instance, the tender-committee controversy was followed by the bank
governors decision to have the police launch a leak investigation under
the Ethics Act. A plausible interpretation is that lower-level officials
were being signaled to keep their mouths shut, or else.
As African regimes have watched their informal or extralegal options
growing narrower under pressure from more vigilant citizens and do-
nors, incumbents have found ways to work through formal institutions,
including courts. Kenya again provides a case in point. Not long after
his December 2002 election, President Mwai Kibaki began reshaping
the judiciary, citing corruption as a reason to sack numerous judges and
replace them with his own candidates. Because the Kenyan justice sys-
tem was poorly institutionalized until the promulgation of a new con-
stitution in August 2010there were no accountability or due-process
mechanisms for appointing or disciplining judges, for instancethe
courts were fairly easy to turn into instruments whose rulings advanced
regime objectives. These included Kibakis plans to stymie and then re-
configure a constitutional-revision process, inherited from the last days
of his predecessor Daniel arap Mois administration, that Kibaki feared
would dilute his power as president.
The Case for Administrative-Law Reform

It should by now be evident that the failure of democratization initia-
tives to tame African presidents is not merely a matter of rampant infor-
malism, but in fact has much to do with statutory laws that give these
chief executives and their subordinates vast discretionary powers. As
we have seen, these powers are instrumental to the regime-maintenance
endeavors of these presidents, who are adept at manipulating law. The
fundamental problem with African politics, therefore, is not that formal
rules are inconsequential or neglected. On the contrary, they are insuf-
ficiently institutionalizedat least in the sense that they are all too of-
ten open-ended and neither transparent nor accountable. They therefore
avail authoritarian or quasi-authoritarian regimes as tools with which to
subvert the progress of democracy and constitutionalism. The deliberate
laxity of the formal rules explains why leaders such as President Ab-
doulaye Wade of Senegal, who spent many years in opposition sharply
criticizing incumbents as undemocratic, begin to behave autocratically
once they gain power.16
This suggests that friends of democracy in Africa should worry
about how the operation of formal law can be made more participa-
tory, transparent and accountablein short, more power-constraining
than power-enabling. A key challenge is to transform the statutes that
give the legal order its imperial or authoritarian character so that this
Migai Akech 103
order conforms to the demands of constitutionalism. H. Kwasi Prempeh

takes the view that simply leaving these laws to the vagaries of consti-
tutional litigation and judicial reviewhoping that courts will strike
them down, in other wordsmay not be enough, especially given that
judicial review is a reactive institution.17 According to him, a more
effective approach would be to repeal by express provision in the text
(of the new constitution) all the repressive statutory laws upon which
authoritarian regimes rely. Although the adoption of such an approach
could help to tame the imperial presidency, I believe that the reform of
administrative lawa field often overlooked amid the dominant con-
cern with constitutional lawalso offers a useful avenue for democra-
tizing the exercise of power.
Administrative law, as its name suggests, regulates public adminis-
tration. On the one hand, this type of law reflects an appreciation of the
inevitability of discretion in the exercise of power, and empowers pub-
lic officials (or administrators) to implement government policies and
programs. On the other hand, it seeks to regulate the exercise of power
by requiring that all administrative actions meet certain requirements of
legality, reasonableness, and fairness. It performs this latter function by
setting out general principles and procedures that all administrators must
follow, and by providing remedies for people affected by administrative
decisions. In common-law jurisdictions, the courts have developed these
principles and procedures.
Nevertheless, countries such as the United States and South Africa
have codified them in statutes such as the federal Administrative Proce-
dure Act and the Promotion of Administrative Justice Act, respectively.
In South Africas case, the statute provides a mechanism for the realiza-
tion of a constitutional provision that confers on every person the right
to administrative action which is lawful, reasonable, and fair. Kenya
has followed South Africas lead, and its new constitution gives every
person a right to fair administrative action. The inclusion of a similar
provision in Zimbabwes draft constitution of 2007 suggests that the
idea of fair administrative action is also gaining acceptance in other
African countries.
Key principles of administrative law include the following require-
ments: decisions of administrators must be reasonable or justifiable; pri-
or to making major decisions, administrators must consult those likely
to be affected by them; decision-making processes must be free of real
or apparent bias; administrators must explain their decisions in writing;
administrators must not act arbitrarily or outside their powers; adminis-
trators must act in good faith; and there must be a right to judicial review
of administrators decisions. Another critical principle of administrative
law is to require checks and balances in decision making. For example,
in the context of criminal-law enforcement, administrative-law princi-
ples would decree a separation of functions between those officials who
are responsible for conducting investigations, and those who are respon-
sible for prosecuting any offenses thereby uncovered.
Crucial procedures also include requirements that administrators must
give adequate notice of proposed ac-
tion to those likely to be affected by
Administrative law is their decisions, and give them rea-
a critical tool for the sonable opportunities to make rep-
creation of a limited gov- resentations. These procedures can
take the form of public inquiries or
ernment that does not rule
notice-and-comment procedures in
arbitrarily, but instead which the affected people are given,
respects the rule of law. say, thirty days to make comments
prior to the taking of a decision. Typ-
ically, such procedures are tailored to
suit the circumstances of the particular case. Through these procedures,
administrative law fosters participation by interested parties in the deci-
sion-making processes of government.
Administrative law is therefore instrumental to the realization of day-
to-day democracy, since it requires that decisions of government must
not only be subjected to checks and balances, but must also be explained
or justified to the people that they affect. In this way, administrative law
ensures that public officials do not abuse their powers, thereby under-
mining the liberties and livelihoods of citizens. Administrative law, in
short, is a critical tool for the creation of a limited government that does
not rule arbitrarily, but instead respects the rule of law.
The method of administrative law is to give those likely to be affected
by a governmental decision an opportunity to participate in its making,
or to contest it once it is made. For this to work in practice, members of
the public should be ready, willing, and able to utilize these opportuni-
ties. In that regard, it is encouraging to witness African civil societies
increasing vibrancy and readiness to call public officials to account.
Further, recent democratization initiativesespecially in the context of
constitutional reforms and such technological changes as the prolifera-
tion of mobile phoneshave made citizens more aware of civic mat-
ters. In significant ways, then, civil society actors and members of the
public are now better able than ever to make good use of the opportuni-
ties that the establishment of administrative-law regimes would create.
The publics capacity to engage officials, moreover, could benefit from
legal-empowerment initiatives, including training in legal literacy and
methods of finding and using legal assistance. Finally, disadvantaged
or marginalized groups would need to have their capacities enhanced in
order to be able to take advantage of the greater amounts of democratic
space that an administrative-law regime would create.
In particular, administrative-law reforms can stem the instrumental
use of law for political purposes. For example, an administrative-law re-
Migai Akech 105
gime would enhance the reasonableness and fairness of the decisions of

electoral bodies, ensuring that they are not used as instruments of regime
maintenance. In the security domain, administrative-law reforms would
enable citizens to hold accountable private security providers who are
integrated into public security networks. Private providers, the reason-
ing would go, are performing an essentially public function in this case
(that is, suppressing crime) and must therefore be held to normal public-
law obligations such as respecting the civil liberties of citizens. By sepa-
rating the function of bringing charges from that of following through
on prosecutions, administrative law would also ensure reasonableness
and fairness in the exercise of the prosecutorial power. This would, for
instance, prevent governing elites from abusing criminal statutes for the
purpose of silencing critical journalists such as those exposing corrup-
tion in government. And by requiring that administrators consult mem-
bers of the public before making decisionsincluding regulationsthat
are likely to affect the public, administrative law would enhance the
prospect that the exercise of power will display a higher regard for pub-
lic interests and concerns.
In these ways, administrative law would draw limits around the ex-
ercise of the broad swaths of power found in the statutory order. If the
framers of the U.S. Constitution deserve the thanks of posterity for hav-
ing adopted such a visionary basic law for their country, the later and
less famous figures who wrote the federal and state Administrative Pro-
cedure Acts deserve thanks of their own for giving U.S. citizens the
tools with which to scrutinize and hold the powers of government to
account on a day-to-day basis. The enactment of similar statutes in Afri-
can countries, and the legal empowerment of citizens to take advantage
of them, would contribute immensely toward taming the imperial presi-
dency. Administrative-law reform is thus critical to enhancing citizens
abilities and opportunities to challenge what remain all-too-common
abuses of power in African countries.
NOTES
1. The first use of the term occurs in Shmuel N. Eisenstadt, Traditional Patrimonialism
and Modern Neopatrimonialism (Beverly Hills, Calif.: Sage, 1973).
2. Daniel N. Posner and Daniel J. Young, The Institutionalization of Political Power

in Africa, Journal of Democracy 18 (July 2007): 126 (emphasis added).
3. Posner and Young, Institutionalization of Political Power in Africa, 126.
4. Goran Hyden, African Politics in Comparative Perspective (New York: Cambridge

University Press, 2006), 111.
5. Richard Joseph, Progress and Retreat in Africa: Challenges of a Frontier Region,

Journal of Democracy 19 (April 2008): 95 (emphasis added).
6. Larry Diamond, The Spirit of Democracy: The Struggle to Build Free Societies
Throughout the World (New York: Holt, 2008), 26061 (emphasis added).
7. Larry Diamond, Progress and Retreat in Africa: The Rule of Law versus the Big
Man, Journal of Democracy 19 (April 2008): 145 (emphasis added).
8. Nicolas van de Walle, The Democratization of Political Clientelism in Sub-Saharan

Africa, paper prepared for delivery at the Third European Conference on African Studies,
Leipzig, Germany, 47 June 2009, 2.
9. Michael Bratton and Nicolas van de Walle, Democratic Experiments in Africa: Re-
gime Transitions in Comparative Perspective (Cambridge: Cambridge University Press,
1997), 63, 66.
10. Diamond, Spirit of Democracy, 247 (emphasis added).
11. H. Kwasi Prempeh, Africas Constitutionalism Revival: False Start or New

Dawn? International Journal of Constitutional Law 5 (July 2007): 474.
12. Rotimi T. Suberu, Nigerias Muddled Elections, in Larry Diamond and Marc F.
Plattner, eds., Democratization in Africa: Progress and Retreat, 2nd ed. (Baltimore: Johns
Hopkins University Press, 2010), 124.
13. Andrew M. Mwenda, Personalizing Power in Uganda, in Diamond and Plattner,

Democratization in Africa, 238.
14. Migai Akech, Privatization and Democracy in East Africa: The Promise of Admin-
istrative Law (Nairobi: East African Educational Publishers, 2009), 97103.
15. H. Kwasi Prempeh, A New Jurisprudence for Africa, Journal of Democracy 10

(July 1999): 138.
16. Joseph, Challenges of a Frontier Region, 100.
17. Prempeh, Africas Constitutionalism Revival, 469.

INTERNATIONAL COMPETITION NETWORK
ANTITRUST ENFORCEMENT IN REGULATED SECTORS
SUBGROUP 1
AN INCREASING ROLE FOR COMPETITION IN THE REGULATION OF BANKS
BONN, JUNE 2005
This Report has been drafted by Darryl Biggar (Australian Competition and Consumer
Commission, ACCC) and Alberto Heimler (Italian Antitrust Authority and co-chair of
subgroup 1 of the AERS Working Group). The competition authorities of Brazil, Hungary,
Indonesia, Mexico, South Africa and South Korea provided very useful inputs. Comments and
suggestions were received from ICN members and from the following individuals: Ginevra
Bruzzone (Assonime), Frdric Jenny (Professor of economics at ESSEC and co-chair of
subgroup 1 of the AERS Working Group), Paul Wachtel (New York University) and, in
particular, Massimo Marchesi. The ICN AERS Working Group, subgroup 1, thanks very much
those that contributed.
I. INTRODUCTION
1. Banking regulation originates from microeconomic concerns over the ability of bank
creditors (depositors) to monitor the risks originating on the lending side and from micro and
macroeconomic concerns over the stability of the banking system in the case of a bank crisis. In
addition to statutory and administrative regulatory provisions, the banking sector has been
subject to widespread informal regulation, i.e., the governments use of its discretion, outside
formalized legislation, to influence banking sector outcomes (for example, to bail out insolvent
banks, decide on bank mergers or maintain significant State ownership).
2. Banks in one form or another have been subject to the following non exhaustive list of
regulatory provisions: 1) restrictions on branching and new entry; 2) restrictions on pricing
(interest rate controls and other controls on prices or fees); 3) line-of-business restrictions and
regulations on ownership linkages among financial institutions; 4) restrictions on the portfolio
of assets that banks can hold (such as requirements to hold certain types of securities or
requirements and/or not to hold other securities, including requirements not to hold the control
of non financial companies); 5) compulsory deposit insurance (or informal deposit insurance, in
the form of an expectation that government will bail out depositors in the event of insolvency);
6) capital-adequacy requirements; 7) reserve requirements (requirements to hold a certain
quantity of the liabilities of the central bank); 8) requirements to direct credit to favored sectors
or enterprises (in the form of either formal rules, or informal government pressure); 9)
expectations that, in the event of difficulty, banks will receive assistance in the form of lender
of last resort; 10) special rules concerning mergers (not always subject to a competition
standard) or failing banks (e.g., liquidation, winding up, insolvency, composition or analogous
proceedings in the banking sector); 11) other rules affecting cooperation within the banking
sector (e.g., with respect to payment systems).
3. In recent years regulation in banking has become less pervasive and has shifted from
structural regulation to other more market oriented forms of regulation. As a consequence
competition has come to play a very important role in the allocation of credit and in the
improvement of financial services. The capital requirements framework created in the context of
the Basel committee paved the way to the development of stronger competition in banking. It is
unquestionable that all over the world banks now face greater competition both from new
entrants in the banking sector and from other financial companies.
4. Competition authorities have not been much involved in the process of liberalization of
banking. Moreover, in several countries the enforcement of antitrust rules until very recently has
not been applicable to banking because of sectoral exceptions.
5. In this light, the purpose of this report is:
to assist policy makers and enforcement authorities (in their competition advocacy
function) in their efforts to promote competition oriented regulatory reform in
banking;
to assist policy-makers and enforcement authorities (in their competition advocacy

function) in promoting an environment where competition law is fully applicable to
banking and where there is an appropriate institutional setting to that end; and
2
to assist competition enforcement authorities in the enforcement of competition law
in this sector, with a special emphasis on merger control.
6. The structure of the report is as follows. First, it briefly reviews the recent history of
banking regulation (section II). Second, it discusses (under the perspective of competition
authorities) the market failures banking are exposed to, their macroeconomic consequences
(section III), and the most common regulatory instruments introduced to address them (section
IV). Then, the report examines the impact of recent liberalizations on market power in banking
(section V). A brief description of banking issues in developing countries follows (section VI).
Finally, the report turns to competition issues, addressing first the application and scope of
competition law (section VII) and then examining issues of enforcement of competition law,
with a particular emphasis on merger control (section VIII). The final section concludes with a
number of recommendations.
II THE RECENT HISTORY OF REGULATORY REFORM IN BANKING
7. In the early 70s financial systems were characterized by important restrictions on market
forces which included controls on the prices or quantities of business conducted by financial
institutions, restrictions on market access, and, in some cases, controls on the allocation of
finance amongst alternative borrowers. These regulatory restrictions served a number of social
and economic policy objectives of governments. Direct controls were used in many countries to
allocate finance to preferred industries during the post-war period; restrictions on market access
and competition were partly motivated by a concern for financial stability; protection of small
savers with limited financial knowledge was an important objective of controls on banks; and
controls on banks were frequently used as instruments of macroeconomic management.1
8. Since the mid 70s there has been a significant process of regulatory reform in the
financial systems of most countries. This process involved a shift towards more market-oriented
forms of regulation and involved partial or complete liberalization of the following:
interest rate controls
Until the early 1970s controls on borrowing and lending rates were pervasive in
most countries. These controls typically held both rates below their free-market
levels. As a result, banks rationed credit to privileged borrowers. By 1990 only a
handful of countries retained these controls.
quantitative investment restrictions on financial institutions
Investment restrictions on banks took a variety of forms, including requirements to

hold government securities, credit allocation rules, required lending to favored
institutions and controls on the total volume of credit expansion. Compulsory
holdings of government securities, as well as having a prudential justification, also
acted as a disguised form of taxation in that it allowed governments to keep
security yields artificially low. With some exceptions these controls were largely
eliminated by the early 1990s.
1
Edey and Hviding (1995), p4.
3
line-of-business restrictions and regulations on ownership linkages among
financial institutions
Although important line-of-business restrictions still remain in place in many

countries, the role of these restrictions has been significantly eroded or, in some
cases, entirely eliminated. For example, the separation of savings-and-loans and
commercial banks has been largely eliminated in many countries, as has the
distinction between long-term and short-term credit institutions in Italy and the
legal separation of various types of credit suppliers in Japan. Bank branching
restrictions were phased out in a number of European countries by the early 1990s.
In the US breaking down the barriers imposed by the (1933) Glass-Steagall Act
the Gramm-Leach-Bliley Financial Service Modernization Act of 1999 permits
banks, securities firms, and insurance companies to affiliate within a new structure
the financial holding company2.
restrictions on the entry of foreign financial institutions
There has been significant liberalization of cross-border access to foreign banks. In

particular, there are now in place a number of international agreements on trade in
banking services, including GATS, NAFTA and the EC. In particular, in the
European Union, the second banking directive (89/646/EEC) forbade the
obligation for banks established in one Member State to seek authorization from
other Member States when they intended to establish a branch in their territory. In
many countries however the entry of foreign banks is still made more difficult than
that of domestic ones.
controls on international capital movements and foreign exchange transactions
Liberalization of controls on capital movements is now virtually complete in

OECD countries and in many developing countries as well3. Some controls remain
on long-term capital movements, particularly with respect to foreign ownership of
real estate and foreign direct investment. There also remain important restrictions
on international portfolio diversification by pension and insurance funds.
The origins of regulatory reform
9. Regulatory reform was driven by a number of inter-related factors, including:
the diminishing effectiveness of traditional controls due to financial innovation

(including the difficulty of isolating domestic markets) and rapid technological
development;
the development of various types of regulatory avoidance (such as the development

of offshore financial centers and off-balance-sheet methods of financing);
competition between international financial centers;
2
See Crockett et al. (2003)
3
The beneficial effects of capital movements liberalization for developing countries are still controversial.
4
competition with non banks for many services (consumer credit; small business
loans; mortgages; etc.);
competition between financial institutions under different regulatory environments;

and, finally,
multilateral agreements liberalizing cross-border banking activities.
Benefits from regulatory reform
10. Regulatory reform has raised efficiency and lowered costs in the financial services sector:
First, the removal of regulatory restrictions gave financial firms more freedom to
adopt the most efficient practices and to develop new products and services.
Second, regulatory reform increased the role of competition, which in turn spurred
reductions in margins in financial services and raised efficiency by forcing the exit
or consolidation of relatively inefficient firms and by encouraging innovation4.
11. Regulatory reform furthermore contributed to:
declining relative prices for financial services and productivity growth well in
excess of that for the economy as a whole5;
considerable improvements in the quality, variety and access to new financial

instruments and services;
improved world allocation of resources due to the removal of the barriers to

international capital flows;
significant improvements in growth performance in a number of developing

countries6.
Regulation has been maintained but has progressively been reformed
12. The progressive liberalization from structural regulatory restrictions such as the ones
mentioned above has not led to the deregulation of banking activity, but to the adoption of new
instruments of prudential regulation more compatible with competition in the banking sector.
The first and most known milestone of this new trend in regulation is the Basel Accord of July
1988 which required the major international banks in a group of 12 countries to attain an 8%
ratio between capital and risk-weighted assets from the beginning of 1992.
13. Subsequently, the increasing range and sophistication of financial instruments made the
limitations of the probably too simple design of the 1988 capital-adequacy framework become
apparent. Already in 1997 the Basel Committee on Banking Supervision, seeking to further
enhance banking supervision in both G10 countries and a number of emerging economies,
released a set of Core Principles which set out minimum requirements for banking
4
OECD (1997a), p83.
5
Estimates indicate that overall financial service sector productivity increased at an annual rate of nearly 4 per cent in the US over
1980-93, nearly three times the rate of the economy as a whole. OECD (1997a), p. 84.
6
See among others and more recently Claessens amd Laeven (2005).
5
supervision. The document also sets out an extensive list of recommended powers of banking
supervisory authorities.
14. Finally, in June 2004 the Basel Committee on Banking Supervision issued a revised
framework (Basel 2) for measuring capital adequacy and for identifying new minimum capital
requirements for banks (Pillar 1). The new framework encourages banks to develop their own
in-house risk-management systems to compute in a much more precise and sophisticated way
their minimum capital requirements , with supervisory oversight present in the endorsement of
the adequacy of the system. The proposals of the Committee, expected to be progressively
implemented from the end of 2006, also introduce two additional pillars for banking regulation
that are expected to become more and more important in complementing capital adequacy
requirements. Pillar 2 introduces a continuous dialogue between banks and their supervisor in
order to follow and accommodate changing and evolving business practices. Pillar 3 calls for
improving the flow of information to the public on banks financial conditions, so that market
discipline can exercise a greater role in reducing excessive risks in banking activities.
III. BANKING REGULATION: THE RISK OF BANK RUNS AND OF MORAL

HAZARD IN BANKING AND THEIR EFFECTS ON THE ECONOMY
15. It is widely accepted that in the absence of market failures, open and competitive markets
yield strong incentives to efficiently meet the demands of consumers and to adapt to changing
demands and technology over time. With very few exceptions, in the absence of a market failure
there is no economic justification for regulation.
16. The most important rationale for regulation in banking is to address concerns over the
safety and stability of financial institutions, the financial sector as a whole, or the payments
system. The description and the evaluation that follows necessarily reflect the views of
competition authorities. With only one exception, no bank regulator has reviewed this Report
which, therefore, does not necessarily reflect the positions and the opinions of bank regulators.
The risk of bank runs
17. All banks operate in conditions of fractional liquidity reserve. The great majority of banks
liabilities are very liquid deposits redeemable on demand. The great majority of their assets are
instead much more illiquid loans. This situation leads to the problem that if all depositors
demanded their deposits back at the same time, any bank (even if perfectly solvent) would face
serious problems in meeting its obligations vis vis its depositors. A single bank might obtain
refinancing on the financial market but the problem would severely persist in cases of low
liquidity on the market or if the issue concerned a big portion of the banking sector.
18. It is well known in the literature that whenever depositors start fearing the insolvency of
their bank, their first most common reaction is to go and withdraw their deposits creating
serious problems to the banks. Such behavior is normally referred to as a bank runI7.
7
There are two alternative theories that have been proposed for explaining bank runs. Some authors, for example Diamond and
Dybvig (1983), consider bank runs as a sunspot phenomenon, unrelated to any underlying economic variables. Others, for example
Bryant (1980), suggest that bank runs originate from some negative information (either right or wrong) depositors have on the
quality of the assets of their bank.
6
The risk of excessive risk taking (moral hazard) in banking
19. Banks grant loans normally financed by the deposits they received. This is by itself a
powerful incentive for banks to grant credit in a not sufficiently prudent way and to take in too
much risk. In fact it is well known in the literature that with debt financing, while the risk of
failure of the financed investment is mostly carried out by the bank depositors, in the case of
success profits accrue mostly to the bank8..A good example of this deviating behavior is the
Asian financial crisis of 1997 that is mentioned further below. In general, however, this
incentive is somehow mitigated by the possibility that the market, both via depositors and other
banks, could monitor the risks assumed by the banks management.
20. The main purpose of regulation is to avoid the highly negative consequences for the
economy of widespread bank failures. There are two main strands of arguments for banking
regulation. The first focuses on the systemic dangers of bank failures, while the second on the
need for security and stability in the payments system.
Systemic dangers of a bank failure
21. The main argument for bank regulation focuses on the possibility of systemic or system-
wide consequences of a bank failure. i.e., the possibility that the failure of one institution could
lead to the failure of others. This argument is summarized by Feldstein as follows:
The banking system as a whole is a public good that benefits the nation over and above
the profits that is earns for the banks shareholders. Systemic risks to the banking system
are risks for the nation as a whole. Although the management and shareholders of
individual institutions are, of course, eager to protect the solvency of their own
institutions, they do not adequately take into account the adverse effects to the nation of
systemic failure. Banks left to themselves will accept more risk than is optimal from a
systemic point of view. That is the basic case for government regulation of banking
activity and the establishment of capital requirements.9
22. It is possible to distinguish two mechanisms by which the failure of one bank could lead
to the failure of other banks or other non-bank firms:
(a) the failure of one bank leading to a decline in the value of the assets sufficient to
induce the failure of another bank (consequent failure) and
(b) the failure of one bank leading to the failure of another fully solvent bank, through
some contagion mechanism (contagion failure)
Consequent failure
23. The failure of a bank, like the failure of any other firm in the economy, may, of course,
lead to the failure of other firms exposed towards the failing bank. The loss of value associated
with the failure leads to a reduction in the value of assets held by its stakeholders. If this loss in
value is sufficiently large and/or the stakeholders themselves are near enough to failure, the
stakeholders may, in turn, fail.10
8
See Dewatripont and Tirole (1994).
9
Feldstein (1991),
10
See Kaufman (1996) , p. 25.
7
29. Although there are, in general, strong incentives to diversify, in the case of a large firm
there may be a number of other firms (such as its suppliers) who are unable to diversify
adequately and whose survival is threatened by the large firms insolvency. However, in
general, banks are able to diversify. They are not constrained to retain their assets with a bank
that is in difficulty. The decision to invest in a distressed bank is a risk-management decision
like all other investment decisions. Provided the investing bank is aware of the risk it is taking,
there is no externality. The externality can however originate from the fact that full information
on potential risk is not immediately, correctly and easily achievable.
Contagion failure
24. A majority of authors argue that there is an important asymmetry between the information
available to banks and the information available to depositors and other outside investors.
Banks can utilize economies of scale and specialization to reduce the transactions costs of
determining the probability that a borrower will not repay a loan as promised, to monitor the
borrowers performance and circumstances, and to take effective actions to reduce the
probability and cost of defaults. Thus banks have information about the value of loans that
depositors and other outside investors do not have..11
25. In the most extreme case of this information asymmetry, depositors cannot distinguish
solvent from insolvent banks. As a result, news that one institution is failing can be interpreted
as information that other institutions are in difficulty. Depositors rush to make withdrawals
from solvent as well as insolvent banks since they cannot distinguish between them.12 It is
possible that the failure of one institution may lead to a generic flight of funds from all
institutions. The available evidence does not always suggests that this has happened.
Dangers to the soundness of the payments system
26. We turn now to the arguments relating to the stability and soundness of the payments
system. These arguments are summarised in the following comment:
An efficient payments system, in which transferability of claims is effected in full and

on time, is a prerequisite for an efficient macroeconomy. Disruptions in the payments
system carry the risk of resulting in significant disruptions in aggregate economic
activity. To some observers, instability in the payments system is more threatening than
instability in deposits. This fear appears to reflect the larger dollar volume of daily
payments, the speedy movement of the funds and the unfamiliarity of the clearing
process. 13
27. Until recently the standard form of settlement between banks was end-of-day net
settlement. Banks would accumulate their obligations to other banks throughout the day in order
to settle the smaller net obligations at the end of the trading day. The risk of this form of
settlement is that it usually requires participants to grant unsecured and unlimited credit to other
participants during the day until final settlement occurs. Credit extended to a single party can
sometimes exceed a banks entire capital. Like other forms of credit, the potential exists for
default. If the expected payment to the bank extending credit does not materialize in full and on
11
Benston and Kaufman (1995), p216.
12
Mishkin (1991),.
13
8
a timely basis, previous payments may need to be reversed or unwound. This may be complex
and time-consuming and cause gridlock in the payments system that interrupts the smooth
flow of trade. Moreover, if the losses to the paying bank from customer defaults were large
enough to drive it into insolvency, the receiving banks would experience losses, which might be
sufficient to drive them to insolvency if these losses exceed their capital.14
28. An obvious candidate solution to this kind of problems is to prevent the intraday build-up
of credit exposures by insisting that inter-bank payments occur at the same time as the exchange
of the corresponding assets. This is known as real-time settlement. Such real-time trading
systems have already been implemented in some countries.
29. In the case of international transactions, the problem of intra-day exposure is however
somewhat more complicated. The problem arises because of the different timing for daily
settlement in each national bank system. For example, in a NZ Dollar/US Dollar foreign
exchange transaction, the NZ$ leg must be settled even before the US system for settling the
US$ leg is open for the day. This gives rise to what is known as Herstatt risk, named after the
failure of a small German bank, Bankhaus Herstatt in 1974. This bank was active in the foreign
exchange markets. It defaulted after receiving deutschmarks from international banks but before
the matching US dollar leg was processed later in the day. This left its counterparties exposed to
the full value of the Deutsche marks delivered. This event severely disrupted CHIPS, the main
clearing system for US dollars, led to a collapse in trading in the US dollar/deutsche mark
market and even resulted in disorder in the inter-bank money markets. This problem is widely
recognised and is a focus of attention of central banks around the world.
IV. STANDARD INSTRUMENTS OF BANK REGULATION
30. This section of the paper provides a description of the most standard instruments of bank
regulation: deposit insurance, capital adequacy requirements and lender of last resort. These
three policies are linked one with the other. Deposit insurance protects the smallest depositors
from a bank bankruptcy and prevents bank runs. Capital adequacy requirements are necessary in
order to make sure that bank managers follow a responsible credit policy, in the absence of an
effective control on the part of depositors. Lender of last resort policies further reduce the risk
of banks bankruptcies providing banks with Emergency Liquidity Assistance facilities that are
designed to avoid that temporary situations of illiquidity lead to the insolvency of the bank.
Deposit insurance
31. Deposit insurance is a guarantee that all or part of a depositors debt with a bank will be
honored in the event of bankruptcy. The specific form of insurance schemes can vary in a
number of ways, including the fee structure (flat fee versus variable, risk-related fees); the
degree of coverage (full versus partial coverage, maximum limits); funding provisions (funded
versus unfunded systems); public versus private solutions; compulsory versus voluntary
participation.
32. Deposit insurance reduces (and in most cases eliminates entirely) the incentive to run
on the bank in the event of financial difficulty. Therefore it reduces the possibility that a
14
9
temporary situation of illiquidity and rumors on the insolvency of the bank actually lead to the
failure of the bank. Furthermore, deposit insurance prevents the chain reaction that can also be
started associated by the run on a single bank, so that it reduces the possibility of contagion in
the banking system.
33. A drawback of its introduction is however the fact itself that from the point of view of the
depositor, deposit insurance makes all banks equally attractive. It almost completely removes
the incentive on the depositor to determine the risk of a bank and the need for the bank to
compensate the depositor for bearing bank-specific risk by including a bank-specific risk
premium in the interest paid to the depositor. Similarly, the depositor faces little incentive to
diversify her portfolio of assets held in banks.15
34. The effect of deposit insurance on the incentives of the bank depends upon the nature of
the insurance contract (and also on any other complementary regulatory measures). In
particular, the effect of the deposit insurance on the bank will depend on whether or not the
insurance premium paid by the bank depends on the individual banks risk.
35. In the case where the premium is completely unrelated to the risk of a particular bank
(i.e., the fixed fee system), there is clearly an incentive for the bank to attempt to increase its
profits by either increasing its revenues (by lending to higher return but riskier projects) or by
reducing its costs (by reducing its reserves). Both actions increase its risk. This is the well-
known moral hazard problem of deposit insurance. Fixed fee deposit insurance creates
incentives for banks to take on more risk in their operations than they would without deposit
insurance. This effect was apparent almost as soon as deposit insurance was adopted in the
1930s, when bank capital ratios dropped from 15% to around 6%16.
36. Deposit insurance, especially if extended to all deposits, by reducing the market
incentives for prudent management, may have the perverse incentive of making banks riskier.17
When this moral hazard extends across all financial institutions, the macroeconomic
consequences can be very significant. .
37. The problem of moral hazard and the need for additional regulatory measures can be
reduced if the insurance premium is related to the risk of the insured bank. An efficiently
organized insurer would graduate insurance premia according to the risk of the banks asset
portfolio and the adequacy of its capital holdings. Such a system would minimize the danger of
15
At least as long as the size of the deposit is less than any ceiling on the amount per deposit insured (100,000 dollars in the US).
Note however how this ceiling is only 20,000 Euros in the EU exactly in the attempt not to exacerbate such problem.
16
Parry (1992) , p 14. The consequences of the moral hazard can be clearly seen in the S&L crisis in the US of the early 1980s.
In the case of S&Ls the insurance premium was set by statute in 1950 at 1/12 of 1% of the assessable deposits and was the same for
all insured institutions regardless of the riskiness of their assets or the size of their equity capital or the capability of their
management. The holder of an insured account had no reason to be concerned with the safety or soundness of the particular
institution in which he had invested, or to require a higher return commensurate with higher risk. ... From the standpoint of the
management and owners of an insured S&L, this system created a constant inducement to take added risks with their expected
higher returns, depositors would not demand higher interest and the FSLIC could not raise its premium in response. Scott (1989),
p37.
17
Ironically, the introduction of government regulations and institutions in the US intended to provide protection against the
fragility of banks appears to have unintentionally increased both the fragility of banks and their breakage rate. By providing a poorly
designed and mis-priced safety net under banks for depositors, first through the Federal Reserves discount window lender of last
resort facilities in 1914, and then reinforced by the FDICs deposit guarantees in 1934, market discipline on banks was reduced
substantially. As a result, the banks were permitted, if not encouraged, to increase their risk exposures both in their asset and liability
portfolios and by reducing their capital ratios. . T(t)his represents a classic and predictable moral hazard behavior response.
Kaufman (1996), p22.
10
adverse incentive effects ... Under such a system, the individual bank bears the consequences of
a higher risk portfolio or a lower capital-deposit ratio, in the form of a higher insurance fee.18
Capital adequacy requirements
38. One regulation which exists in most countries is some form of capital adequacy
requirement. Capital adequacy requirements can take a variety of forms. Most countries know
a minimum level of required capital (an absolute amount). Beyond that, many countries require
the maintenance of some capital - or solvency - ratio; that is, a minimum ratio between capital
and an overall balance sheet magnitude, such as total assets or liability, or some weighted
measure of risk assets.19
39. However, capital-adequacy requirements do have certain difficulties:
(a) First, it is difficult to design capital-adequacy requirements in a sufficiently

sophisticated way. For example even though the 1988 Basel rules on capital
adequacy for banks categorizes assets and assigned a risk-weighting inevitably
differences in risk were overlooked between individual assets. One consequence
was that banks tended to search for the most risky assets within a risk class,
encouraging banks to go up the yield curve in pursuit of a return on capital.20 In
effect, the moral hazard problem re-emerged within the constraints of each
regulatory risk class.
(b) A particular problem can arise with inter-bank lending. If inter-bank lending is
treated favorably for capital-adequacy purposes in order to promote the liquidity on
the market, banks may, perversely, be given incentives to lend to other banks in
difficulty, increasing the risk of contagion and removing one of the more important
disciplines on bank risk-taking.
(c) Third, with technological advances, innovation in financial products is rapid.

Regulations, in contrast, might be changed not sufficiently frequently and only
catch up with current developments.
(d) Fourth, in some cases the adoption of new financial products is hindered by
lagging regulatory developments, delaying and stifling the pace of innovation.
40. Partly as a result of an increasing recognition of these problems, the Basel Accord was
modified in 2004 introducing more sophisticated ways of computing capital requirements and
increasing the focus on risk-management policies and systems in banks. In particular the new
regulation, which will start to be implemented from the end of 2006, encourages banks to
develop, with supervisory oversight, their own systems to compute minimum capital
requirements. Furthermore Basel 2, by improving the flow of information to supervisors and the
public on banks financial conditions, assigns a greater role to supervisory and market oversight
in reducing excessive risks in banking activities.
18
Baltensperger (1989), p8.
19
Baltensperger (1989), p13.
20
Charles Dallara, Chief Executive of the Institute of International Finance, reported in Financial Times, Wednesday, November 19,
1997.
11
Lender of last resort
41. In most countries the central bank or the government have an explicit (or implicit) policy
of providing assistance to banks facing financial difficulties
42. These lender of last resort interventions should be strictly limited to illiquid banks, easing
only very temporary liquidity problems faced by banks (Emergency Liquidity Assistance), not
extending also to help insolvent banks. In fact, whenever the lender of last resort assists
insolvent banks, its intervention has the same consequences of a flat-rate unfunded deposit
insurance, giving banks a strong incentive to adopt a riskier position than otherwise.21 As with
deposit insurance, when such incentives extend across the financial system, the macroeconomic
consequences can be severe.
Moral hazard and the Asian financial crisis
In the mid 1990s, several countries in South-East Asia experienced a severe currency and financial crisis,
on a scale that was almost entirely unforeseen, involving collapses in domestic asset markets, widespread
bank failures, bankruptcies on the part of many firms and a very severe economic downturn.
The crisis represents something of a puzzle for macroeconomists. None of the fundamentals that drive
traditional currency crises seem to have been present in any of the afflicted Asian economies. On the eve of
the crisis all of the governments were more or less in fiscal balance; nor were they engaged in irresponsible
credit creation or runaway monetary expansion.
In a paper written at the bulk of the crisis, Paul Krugman attempts to explain this puzzle, focusing on
problems with bank (non) regulation in these countries. He argues that a key common feature was that the
liabilities of financial intermediaries in these countries were perceived as having an implicit government
guarantee, but that the financial institutions themselves were essentially unregulated and therefore subject
to severe moral hazard problems.
To be sure, the government guarantees were not explicit. However, press reports do suggest that most of
those who provided Thai finance companies, South Korean banks, and so on with funds believed that they
would be protected from risk - an impression reinforced by the strong political connections of the owners
of most such institutions. In practice, moreover, these beliefs seem to have been for the most part validated
by experience.
In the presence of government guarantees and a complete absence of prudential regulation, Krugman
shows that banks have an incentive to continue lending as long as there remains any possibility at all that
the lending will yield a positive return. This has the effect of bidding up asset prices to the point where
they reflect their highest possible return, which can be several times higher than prices in an efficient
market. The inflated value of assets improves that apparent financial position of the financial institutions,
permitting more lending, and so on.
Krugman argues that a widespread perceived risk that government would decide to abandon the implicit
debt guarantees is sufficient to lead to a financial crisis in which plunging asset prices undermine banks,
and the collapse of the banks in turn ratifies the drop in asset prices. The self-fulfilling prophecy
component of this story can help explain why an asset value down-turn in one country can rapidly spread
21
It must however be said that it may be very difficult in practice to immediately distinguish an illiquid from an insolvent bank.
12
to others, in what is traditionally been called contagion. The moral of the story is either to impose
stringent prudential regulatory controls or abolish the government guarantees.
V. REFORM OF BANK REGULATION AND MARKET POWER
43. On the credit side competition between banks has led to lower spreads and greater care in
financing sound projects. Claessens and Laeven (2005) write:
More competitive banking systems are better in providing financing to financially

dependent firms. . There is support for the view that more competition may reduce hold
up problems and lower the cost of financial intermediation, making financially dependent
firms more willing to seek (and more able to obtain) external financing
Furthermore in most countries, including developing ones, recent market developments have led
to strong rivalry by non bank financial institutions for the supply of some banking services, for
example consumer credit or factoring services to small and medium size firms. This implies that
banks market power is somehow disciplined also by non banks.
Ensuring that banks are properly informed of the debt exposure of potential borrowers
44. Especially in developing countries, however, competition among banks may be impaired
because information on the credit worthiness of potential borrowers is not readily available.
Without a proper supplier of information on borrowers credit worthiness, each single bank has
an informational advantage over any other bank on the credit worthiness of its customers. New
banks will be very reluctant to lend to customers of other banks, if they are not fully and readily
informed on the total debt exposure of each potential borrower. A competitive financial market,
where banks compete for customers and potential borrowers choose among alternative banks as
suppliers of funds, can only develop if banks are fully informed on the total exposure of each
customer. Otherwise, if information is privately held by each bank, the market for credit will be
segmented and banks will only lend to customers they personally know.
45. Relationship banking is particularly efficient when firms are small and accounting rules
are not very effective. On the other hand a marked based system is particularly effective when
firms are relatively large and accounting statements transparent. Moreover, limitations on
competition in a relationship-based system do not just give the financier (market) power, but
also strengthen his incentive to cooperate with the borrower22. This implies that a relationship-
based system tends to smooth firm specific shocks intertemporally, while an arms length
system is much less able to provide such contingent insurance. On the other hand relationship-
based systems, because of the illiquidity of the financed assets, have an incentive to increase
financial risk more than arms length systems. Market based financing permits more
flexibility in explicit contracts, which allows the system to absorb adverse shocks. Moreover the
healthy can be distinguished from the terminally ill after a shock and can be dealt with
differently not everyone has to sink or swim together as in the relationship system23.
22
See Rajan and Zingales (2003) p. 12.
23
See Rajan and Zingales (2003) p. 19.
13
46. Relationship banking does not imply that potential borrowers do not have but one choice
with respect to the bank that would assist them. There can be strong competition among banks
also with relationship banking. In fact, in some countries, where the banking industry is
sufficiently competitive and the industrial sector is sufficiently developed, each local bank may
be willing to invest in order to develop a credit relationship with each local firm.
47. In many ways the two systems (arms-length and relationship banking) coexist in the same
economy. Regulators should therefore not impose or favor one system over the other and should
introduce regulatory provisions that are as much as possible neutral with respect to the type of
relationship between banks and their creditors.. Regulators should therefore maintain a
centralized system of monitoring the full exposure of different firms with respect to the banking
system, and more in general with respect to the financial sector at large, requiring all financial
institutions to communicate to the regulator all loans granted to a given (consolidated) borrower
and their degree of utilization. The increase in transparency that such a system of centralized
monitoring of debt exposure would provide, may help the development of arms-length
financing, and in any case reduce the market power of each bank with respect to its customers.
48. Antitrust authorities should use their advocacy powers to ask for such centralized reporting
of debt exposure to be undertaken. Their role can be very important because they would advice
on how to collect the information centrally without, at the same time, promoting collusion
among market players.
Regulatory reform, competition and depositors switching costs
49. While, in many countries banks benefited from the new opportunities originating from
regulatory reform by offering new and improved financial services to customers, switching
costs for consumers remained quite high, so that competition between banks did not increase
proportionately. There is now substantial evidence that the widening range of services offered
by banks was not associated with a significant increase in the elasticity of each bank residual
demand (as should have been expected because of greater competition). The effect of
liberalization on the market power of banks with respect to customers of banking services was
probably not too strong.
50. In recent decades, besides the traditional deposit-taking banks have entered quite a
number of new related markets, such as (among others):
Credit cards services, paying bills for depositors

Consumer loans
Mortgages
Life insurance
Financial consulting; Management of investment funds; Asset management
By providing all these services under one roof, banks reduce the transaction costs depositors
would have faced had they been obliged to negotiate for receiving these services with a number
of different providers. At the same time, however, by offering all these services, banks have
made it more costly for depositors to switch bank. In fact should depositors decide to move to a
new bank they would need to: 1) receive new credit cards (with a different number and expiry
date) that would need to be communicated to any service provider, for example the cable TV
company, should its bills being paid by credit card; 2) inform the new bank about all utilities
whose bills were being paid by debiting the depositor checking account; 3) transfer the deposit
14
of all purchased stocks or bonds to the new bank; 4) maintain the checking account of the old
bank just to service the mortgage; 5) communicate to all correspondents the new banking
coordinates. The increase in switching costs tends to make steeper the residual demand curve
each bank faces, so, even though competition may be increased in each of the markets where the
bank expanded, the overall market power of each bank is increased, at least with respect to
existing depositors. Or, to say it differently, in order for a bank to convince depositors of
another bank to switch, the improvements in the quality of services it offers must be much
larger than it would be the case in the absence of switching costs.
51. Depositors may also face switching costs because of strategic behavior on the part of
banks. For example while opening a checking account may be free, banks may require that a
high fee be paid when closing an account. There are good reasons why a policy of charging for
closing an account would be followed by all banks and would not be competed away: Each
bank benefits by market segmentation and no bank benefits by unilaterally reducing exit costs.
52. This is why it is unlikely that banks would engage autonomously in switching costs
reducing activities, given that this would imply reducing profits for each bank and also for the
industry as a whole. Pro-competitive rules and regulations may contribute to make switching
easier, so as to ensure that all the benefits originating from greater competition actually reach
consumers.
53. Regulation could impose on all banks disclosure rules with respect to all the costs
involved in switching, so that consumers are made aware of these costs and competition among
banks may indeed prove to be very useful.
54. With the advent of the internet, banking is no longer necessarily a local industry, not even
for the smallest depositor, at least in countries with widespread internet literacy. Since banking
technology is the same across the world it is extremely important that regulation does not limit
the extent of the market with unjustified restrictions. This is particularly important in
jurisdictions that use the same currency. For example, the introduction of the Euro in 2002
could have made depositors indifferent as to the nationality of the bank where they would
deposit their savings, leading to a very significant enlargement of consumer choices and of
competition. Notwithstanding the regulatory interventions in such directions, such as with
regulation (EC) 2560/2001 on cross-border payments in the Euro area, the high costs
traditionally associated with dealing with foreign banks have remained. As a consequence, the
residual demand of a bank localized in one country remained substantially equal to what it was
before the Euro, while the removal of the higher costs associated with cross border transactions
would have probably led to a significant increase of the elasticity of its residual demand.
55. Antitrust authorities should use their advocacy powers to push forward the pro-consumer
agenda.
VI. BANKING AND THE FINANCING OF DEVELOPMENT
56. Cross country comparisons show the importance of a well developed banking sector for
achieving both long term economic growth and the reduction of poverty. Countries with better
developed banking systems and capital markets have shown higher growth rates24. However the
24
See World Bank (2001)
15
direction of causality is not always clear. In particular, need property rights and contract laws be
firmly in place before a viable financial sector is developed? Is the modernization of the
banking sector a prerequisite for economic growth or is the other way round? What is the role of
the public sector in the financing of development? This section will try to provide the
competition authorities view, drawing on the existing literature and on the responses to a
questionnaire delivered to six countries: Brazil, Hungary, Indonesia, Mexico, South Africa,
South Korea.
57. Finance is always necessary for growth. In particular ongoing business need finance for
operation and for expansion. The same is true for launching new business enterprises.
Households need to have safe deposits, access to the payment system, to mortgages and
consumer loans. In this respect the experience of many developing countries show that the
banking sector is generally responding well to the needs of the wealthy households and of the
established firms. More in general, banking seems to develop well with firms and people that
are able to offer a collateral or have formal employment so as to provide some guarantee with
respect to future income, less well with people and firms that are unable to offer guarantees.
However, while in developed countries this second group of customers is relatively small, in
developing countries it represents the majority, so that banks tend to provide services only to the
minority of the population. In banking, while the competitive solution with little regulation is
appropriate for these existing banks so as to eliminate distortions, favoritism and high interest
rate spreads. As ana example, the Pakistani competition Authority in its submission to the
OECD Global Forum on Competition in February 2005 writes:
The financial sector was deregulated and with the economic liberalization, new
banks, financial institutions, leasing companies, housing finance, investment companies
and foreign banks have come up, which has created a competitive milieu25.
58. Regulatory reform and competition are able to expand the reach of banking to the
underprivileged. On the one hand, especially in countries where the majority of potential
borrowers do not have a collateral to offer, conventional banking may lead to a non optimal
equilibrium, where quite a number of low risk project are not financed and high-risk borrowers
end up having to pay higher interest payments. On the other hand technical progress and
flexible regulation have made it possible to provide banking services also to the poor. For
example Dymski (2003) writes:
Lemon Bank (a microcredit bank) offers credit and debit cards and savings accounts
to the unbanked. Its minimum amount are tiny, and checking services are available
without annual fees. Lemon Bank, which has 3600 access points, many in favelas and
in drugstores, is about to launch a media campaign aimed at opening 100,000 new
accounts by years end.
59. As for the lending side, in recent years in many developing countries specialized lending
institutions started to use unconventional methods to lend successfully to the poor, starting what
is now known as microcredit. Considerable evidence shows that such unconventional lenders
were able to lend to borrowers that no conventional borrower was willing to attract and
nonetheless performed much better, in terms of financial self sufficiency and repayment rates,
than would conventional banks in comparable loans. The reason of this success, that is not
limited to the Grameen Bank in Bangladesh, is the use of unconventional methods of risk
reduction: forming groups of borrowers that are jointly responsible for each others loans (joint
liability) and intense monitoring of clients, relying heavily on the promise of repeating the loan.
25
See OECD (2005)
16
60. A recent World Bank report on rural financial services26, comparing the competitive low
interest rates that microcredit offers with the regulatory solution of subsidized low interest rate,
concludes that the competitive solution of allowing microcredit institutions to develop is far
superior. Indeed subsidized credit leads to excess demand and the decision on which firm to
lend does not depend so much on the relative profitability of the underlying project, but mainly
on other considerations (political connections, corruption etc.). The World Bank report outlines
in the following table, the cost and benefits of the old and the new paradigm:
Table 1 Primary features of the old and new paradigms in rural finance
Features Directed Ag. Credit Paradigm Financial Systems Paradigm
1. Chief aims Boost agricultural production Reduce market imperfections and

Reduce poverty Transaction costs for income
expansion and poverty reduction
2. Role of financial markets Help the poor Intermediate efficiently
Stimulate production
3. View of users Beneficiaries: borrowers Clients: borrowers and depositors
4. Subsidies Heavily subsidy dependent Increasingly independent of subsidies
5. Sources of funds Vertical: governments and donors Horizontal: primarily voluntary
deposits
6. Associated Dense, fragmented, and vertical Less dense and mainly horizontal
information systems
7. Sustainability Largely ignored Major concern
8. Outreach Mostly ignored Primary concern
9. Evaluations Credit impact on beneficiaries Performance of financial institutions
mainly primary data
Mostly secondary information
Source: World Bank (2003)
61. In the past decade many micro-credit supplying institutions, which originally were State
owned and loss making, were progressively privatised and deregulated, increasing both their
efficiency and their profitability. Besides the Grameen Bank in Bangladesh which is well
known, BancoSol in Bolivia, Bank for Agriculture and Agricultural Cooperatives (BAAC) in
Thailand, Bank Rakyat Indonesia (BRI) and the National Micro-finance Bank (NMB) in
Tanzania are all successful examples of efficient micro-credit. They all show the important role
micro-credit institutions in developing countries can play in fostering rural development and
how more effective market based institutions can be with respect to direct Government
interventions for directing credit to specific markets at regulated low interest rates. Important
conditions for success include independence of decision-making and a high level of
accountability for financial performance27.
Three examples of successful micro-credit
Banco Sol started in Bolivia in 1987 as a non-profit foundation and in 1992 was turned into a private
bank, the first bank in the world dedicated exclusively to microfinance. By 2002 Banco Sol became the
26
World Bank (2003)
27
See World Bank (2003)
17
largest institution in Bolivian financial markets in terms of the number of loan contracts (35% of the total)
with an outstanding loan portfolio of $ 67 million (see Santos 2003). The profitable strategy of Banco Sol
was to lend to previously unbanked firms and individuals, reducing risk with joint liability contracts and,
as a consequence, charging much lower rates than those available on the informal money market, before its
entry the only available source of funds for its clients. (Andersen and Nina, 2000).
The experience of BAAC in Thailand shows the important role that competition oriented regulatory reform
in banking can have on the profitability of microcredit institutions. BAAC depended initially exclusively
on capital from government, and in the early 1970s displayed a chronic funding shortage and loan
recovery rates as low as 51%. At that time the solution was additional regulation and the Bank of Thailand
adopted an agricultural credit policy in 1975, by which commercial banks were obliged to lend a share of
their portfolio to agricultural sector. Many of these banks, instead of lending directly to agriculture,
deposited their funds with BAAC. As a consequence, the structural shortage of funds suffered by BAAC
disappeared. Banking reforms undertaken between 1988 and 1996 eliminated interest rate ceilings and
restrictions on the opening on new branches, eliminating also the constraints on commercial banks on
agricultural lending. Nonetheless the efficiency of Baac strongly increased and rural deposits became its
main source of funds. By the late nineties its branches had grown from 82 to 535, its outreach and savings
mobilization had raised at such point that it did not even suffer from the financial crisis of 1997 (see
Seibel, 2000).
BRI in Indonesia has been a major provider of microfinance since 1984. By 1989 BRI was able to finance
its lending activity with rural deposits. According to Seibel (2000)
BRI benefited form interest rate deregulation and a management initiative to commercialize
operations by transforming its sub-branches into self-sustaining profit centers. For example it
offered its staff profit-sharing incentives. The bank covers its costs form the interest rate margin and
finances expansion from its profits; its long term loss ratio is only 2.1 percent.
BRI, like BAAC, remained profitable even during the Asian crisis. As Seibel (2000) reports it was the only
profitable entity among the government-owned banks. .
NMB was created in Tanzania after the privatisation in 1997 of the loss making rural branches of the
National Bank of Commerce. After an internal restructuring and a thorough reform of NMB pricing policy,
by 2002 NMB had become profitable without having to close any of its branches. As the World Bank
(2003) reports:
A key initiative has been the development and rolling out of microfinance products, mainly small
(average $400). As of June 2002, 10.000 loans had been disbursed through 36 of the banks 104
branches, with a level of arrears below 2%.
VII. THE SCOPE AND ROLE OF COMPETITION LAW IN BANKING
62. We turn now to the interaction between competition law and banking regulation and, in
particular,to an explanation of why the full application of competition law in the banking sector
by a national competition authority is desirable, and in no way incompatible with an effective
regulatory framework.
Competition law should fully apply to banks( in parallel with banking regulation)
18
Item 4 of the OECD Policy Recommendations on Regulatory Reform specifies that
sectoral gaps in coverage of competition law should be eliminated unless evidence
suggests that compelling public interests cannot be served in better ways. This is
echoed in the Financial Services chapter:
It is important that the rigorous concern for the pursuit of competition policies that
has been a key element of past policies toward the financial services industry be
continued. Basic principles of competition policy should be applied in financial
services as should competition law, subject only to clearly justified exceptions
needed for prudential reasons or other overriding public policy objectives.28
As an aside it is, of course, necessary that the national competition laws are up to
the task29. In particular, the national competition laws must be generally-applicable,
flexible enough to take full account of differences in different sectors, and must be
designed to promote economic efficiency objectives.
Banks should not be subject to their own, special competition rules but should
be subject to general competition rules.
Very often it is proposed that a sector be subject to its own particular set of
competition rules on the grounds that the sector is unusually important or in some
other sense special. The proposal should be treated cautiously. Violations of
competition rules fall within very general categories and are flexible enough to
accommodate any sector specific characteristics. Special competition rules are not
only unnecessary, but they may also undermine enforcement. There is a very thin
line between sector-specific competition rules and continued regulation, especially
if the special rules are to be enforced by the former regulator. There is a danger that
sector-specific enforcers may adopt an understanding of competition that is overly
congenial to the industrys traditional mode of operation instead of promoting a
competitive regime.30 As explained in the following box, sector-specific laws are
more vulnerable to being changed and enforced in the interest of the regulated
industry, rather than in the interest of the economy at large. General laws, on the
other hand, tend to be more immune and therefore more robust and long-lived.
Sector-Specific Or Generic Regulation?
Are sector-specific competition rules preferable to generic competition rules? Is it preferable to have a
sector-specific competition enforcer or an economy-wide competition authority? The answer is that,
wherever possible, generic regulation and generic enforcement is preferred to the sector-specific approach.
The reason is straightforward. Sector-specific institutions encourage sectoral lobbying and are more
vulnerable to industry capture. Experience suggests that firms in a regulated industry will, over time, seek
to influence their governing regulatory regime to their own purposes - for example, to restrict competition.
In particular, the regulated firms will seek to use political pressure - on policymakers and regulators - to
influence the legislation or the enforcement of the regime.
28
OECD (1997b), p98.
29
See OECD (1997b) p255.
30
OECD (1997b), p256.
19
In contrast to an economy-wide regulatory regime, sector-specific regulation is much more vulnerable to
this form of lobbying. The larger and more diverse are the affected firms, the harder it is to form the
coalition of common interests necessary to maintain a sustained lobbying effort. Generic legislation, which
applies to a large number of firms with different interests, is therefore more stable and more immune to the
tendency for regulation, over time, to operate for the benefit of the regulated industry.
The same is true for the regulatory body itself. Experience suggests that over time, through the sustained
lobbying efforts of the industry, sectoral regulators tend to be influenced by the specific interests of the
industry they regulate. That is, it becomes increasingly harder for the regulatory body to distinguish the
public interest from the interest of the industry. Regulators, in direct contact with those whom they
regulate rather than with consumers, tend to identify more with suppliers and their problems than with the
general public and its problems.31 A generic regulator with experience in a large number of industry
sectors is able to more easily discern self-interest in the arguments of the regulated firms and is less likely
to be peopled with staff who see a bright future for themselves in the regulated industry.
Importantly, a sector-specific regulator may also become an obstacle for regulatory reform. Over time, the
interests of the regulatory body and the regulated industry may converge - both have a strong interest in the
continuation of the sector-specific regulation, even where the underlying reason for the regulation no
longer exists. Indeed, where the underlying reason for the regulation disappears, sector-specific regulators
have a strong incentive to find alternative reasons for regulation, in order to ensure its continued survival.
A generic regulator, in contrast, has little interest in the continuation of any specific regulation and
therefore can act as an important influence, where appropriate, for regulatory reform.32
More generally, a sector-specific regulator has incentives to argue against structural reforms or other policy
actions which the expand the role of competition (and therefore reduce the responsibility of the regulator)
within the regulated sector.33
In addition, a generic law is likely to develop a larger body of case law more quickly than a sector-specific
law.
Where generic competition rules apply to the financial sector, banking supervision authorities, if charged
with their enforcement, may be naturally led to take into account, in a non-transparent way, concerns
relating to the stability of banks and to adopt an improper regulatory approach in the application of
competition rules, for instance, as far as the choice of remedies is concerned.
Finally, also due to the removal of most regulatory line of business restrictions in many countries, it is
becoming increasingly difficult to design an effective and stable system in which a subset of markets or
firms is not under the jurisdiction of the economy-wide competition authority but of a sector-specific
competition law enforcer.
Antitrust law should be enforced by the general antitrust authority, not by the
specialized sectoral regulator
31
Benston (1973), p221.
32
Sector-specific agencies may resist the pro-competitive thrust of reform because of self-interest. An agency whose chief purpose
is to regulate an industry ensures its own survival by keeping regulation in place. The general jurisdiction competition-enforcement
agency, which has no such concern with respect to any particular industry, may be able to assess competitive conditions and
opportunities more impartially. OECD (1997b), p256.
33
There are other arguments in favour of generic legislation. For example, the development of a body of case law is likely to be
more rapid under industry-generic legislation, enhancing industry certainty. It might be argued that industry-specific measures are
preferable when there are serious shortcomings in the generic competition law. In this case, however, rather than introduce sector-
specific rules, these shortcomings should be addressed as soon as possible.
20
Again, as the box emphasizes, there are strong reasons for preferring that
competition rules be applied by the antitrust authority and not by the sector-
specific regulator. Should sectoral expertise be necessary for competition
decisions, this can be addressed through formal or informal consultation of the
sector regulator by the competition authority. The OECD Report on Regulatory
Reform notes:
Reformers should pay special attention to experiences of agencies such as the US

Interstate Commerce Commission and the Civil Aeronautics Board. Though
originally charged with ensuring competition, these two regulators became means
for maintaining cartels. The problems persisted after the old agencies were
abolished. For several years after the US airline industry was deregulated,
jurisdiction over airline mergers rested with the Department of Transportation,
rather than the antitrust agencies. The Department approved several combinations
leading to significant market power in several city-pair markets, despite vigorous
objections from the antitrust authorities. The same thing happened in the case of a
railroad merger approved by a special Board within the US Department of
Transportation.34
63. The process of regulatory reform in the banking sector, which has occurred over the past
two decades, has significantly increased the role of competition in the banking sector. At the
same time, there has been a movement (in those countries which had partially or totally
exempted their banking systems) to extend the jurisdiction of national competition laws to
include banks:
Finnish legislation has been largely emended in 1998, removing special provisions for
bank mergers. The Irish Competition Act 2002 assigns to the Irish competition Authority
all powers on mergers, including banks.
In France bank mergers fall now fully under the general antitrust provisions. The French
Authorities have to consult with the banking regulator before taking a decision and
should provide a full explanation, should they decide to deviate.
In Canada the Competition Act of 1986 brought bank mergers and interbank agreements
within the scope of the general competition law (subject to a general right of
authorization of mergers by the Minister of Finance). Prior to this new Act, interbank
agreements and mergers involving banks were exempted from competition law.
In Germany special treatments for banks under the competition Act have been
progressively eroded and all remaining privileges have been lifted as of January 1 2000.
In Portugal the new Competition Act applies fully to banks.
The European Court of Justice confirmed in 1981 that EC competition law has
always fully applied to the banking sector.
64. In almost all jurisdictions Ministries of Finance or Central Banks have the duty to control
bank mergers for stability reasons and for ensuring the safety and soundness of the
institution and its managerial competency, while competition authorities control them on
competition grounds. Only in very few jurisdictions competition and stability concerns are
pursued by the same institution:
34
OECD (1997b), p256.
21
In Brasil the Central Bank has full responsibility over bank mergers (both for stability and
for competition considerations).
In South Africa, the Minister of Finance for public interest objectives can exclude the
competition authorities jurisdiction over bank mergers.
In the US, under section 18(c) of the Bank Merger Act of 1966, the Comptroller of the
Currency (OCC) for national banks, the FDIC for federally-insured, state-chartered banks
that are not members of the Federal Reserve System and the Board of Governors of the
Federal Reserve System for state-chartered banks that are system members, must conduct
their own competitive analysis of bank mergers. However in most transactions only
DOJ and a single bank regulatory agency actually are involved and obtain a
competitive factors reports from the Attorney General of the United States before
approving a bank merger.
In Italy the antitrust law provisions apply to banks but they are enforced by the Central
Bank (only in so far as the conduct or the merger produces effect on credit-making and
deposit-taking markets). In such cases the antitrust authority is obliged to provide an
advice. In all other circumstances the antitrust authority is fully responsible.
In Korea, the Financial Supervisory Commission, when considering an approval of a
merger or an acquisition, has to have prior consultation with the Korea Fair Trade
Commission on the effect of the operation on competition.
VIII. THE APPLICATION OF COMPETITION LAW IN THE BANKING SECTOR

WITH A PARTICULAR EMPHASIS ON MERGERS
65. We turn now to the issues that arise in applying competition law in the banking sector. In
particular we will address some of the problems arising in merger control, as an example of how
a competition authority applying competition law can bring added value (for example, in the
field of market definition, which has been under discussion for quite some time). For reasons of
concision, restrictive agreements and abuse of dominance in banking are not analyzed in detail
in this report.
66. During the last fifteen years there has been a decline in the number of banks in many
OECD countries.35 Reasons for the consolidation of banking activity include (amongst other
factors) the relaxation of restrictions on the geographic area that a bank can serve, and
elimination of other structural regulations that may have served to shelter relatively inefficient
banks from competition.36 An additional factor is the adoption of new information processing
technologies which has increased the efficient scale of operation in some bank activities.37
Framework for analyzing bank mergers38
35
In the U.S., for instance, the number of banks declined monotonically from 14,230 in 1983 to 10,313 in 1994. Over this twelve
year period, entry of 2,416 newly chartered banks more than made up for the 1398 banks that failed and exited. The net decline
represents a wave of merger activity among banks in the U.S. which has no parallel since the Great Depression. Not only has there
been a large number of mergers in the recent past, but a number of individual mergers that have taken place during the 1990s rank
among the largest U.S. bank mergers ever, in terms of the real value of the assets involved and also in terms of the share of total U.S.
bank assets accounted for by the merging banks. Rhoades (1996a) , Rhoades (1997) ,.
36
Rhoades (1996b) , Rhoades (1997), Berger, Kashyap, and Scalise (1995)
37
Description and some discussion of changes in regulations and other forces relevant to the competitive analysis of banking
markets in Europe can be found in Gual and Neven (1992) .
38
This section closely follows Rozanski and Rubinfeld (1997).
22
67. In assessing the likely effect of a bank merger on competition, in principle one should
consider whether the merger could create or facilitate the exercise of market power, where
market power is defined as the ability of firms to increase price or reduce quality from pre-
merger levels. A merger could have anticompetitive effects by making it profitable for a leading
firm to exercise market power unilaterally, or by increasing the likelihood that firms in a market
could successfully maintain a collusive outcome.
68. To evaluate the effect of a merger, it is essential to analyze the mergers impact on the
range of services provided by banks. Banks sell a wide range of services or products, including
deposit, loan, and investment services sold to retail customers; deposit, loan, and various other
services sold to businesses, and also correspondent services, which are specialized services
supplied by a relatively limited number of banks to other banks, often for resale to the ultimate
purchaser. Trade finance, custody, check clearing services, and foreign exchange services are
examples of correspondent services. Banks in some countries are restricted in their ability to
offer underwriting services, insurance, and some investment products. There are fewer
limitations on the ability of banks to offer these products in most other countries.
69. In general, the analysis of the likely effects of a merger on competition must take into
account a number of factors. One factor is the possibility that prospective purchasers of a
product would choose to substitute to alternative products in response to a small but significant
increase in the relative price of the product. If such substitution would not occur in an amount
sufficient to make the price increase unprofitable then the product constitutes a relevant product
market. A second factor is the possibility that prospective purchasers could turn to alternative
sources of supply, including firms that currently produce and sell the product in other
geographic areas. If such substitution away from firms located in a given area would not be
significant, then the area constitutes the geographic market. The possibility of significant new
competition from entry by firms that dont currently produce or sell the product is a third
factor39.
70. The structure of competition in the relevant product and geographic market, including the
number and relative competitive effectiveness of current market participants, affects the
likelihood that a merger be anticompetitive. Other characteristics of competition in the market
also affect the likelihood of anticompetitive effects. For example, if there is significant product
differentiation, and if products sold by the merging firms are perceived by purchasers to be
relatively good substitutes, than there is a greater possibility of unilateral anticompetitive
effects. If firms have good information about the competitive actions of their rivals, and if
competitive strategies can be revised quickly, then coordinated anticompetitive effects are more
likely. Finally, in some countries competition law allows consideration of a possible efficiency
defense - if a proposed merger holds the promise of real efficiencies that could not reasonably
be achieved through other means, these efficiencies could serve to lessen concerns about the net
effects of the merger on competition.
71. The analytical framework described above will result in different policy
recommendations for bank mergers in different countries, because of significant differences in
the structure of competition, the preferences of purchasers of bank products (and the set of
alternatives they face) and the institutional context. The following paragraphs set out an
indicative approach to the analysis of competition in the markets for small business loans and
39
These are the arguments used by the DOJ/FTC in their merger guidelines in their hypothetical monopolist test for market
definition.
23
consumer bank products, two bank products for which competition concerns tend to be the
greatest.
Small Business Loans
72. Small businesses40 typically have obtained a variety of credit products from banks,
including mortgages on commercial property, and loans to purchase or lease vehicles,
equipment, and other capital goods. In recent years however non banks have started to enter into
this filed offering a number of credit products to small businesses, such as factoring, leasing and
mortgages. On the other hand businesses that have a need for a line of credit for startup or
working capital are likely to have a limited ability to substitute away from their bank.
73. It is not uncommon for small businesses to rely to a significant extent on personal credit,
such as general purpose consumer credit cards or a second mortgage on a personal residence.
These alternatives are likely to be viewed as inferior, however, because they are relatively high
cost, and they put personal assets at risk. The question for antitrust analysis is whether, as a
result of a merger, banks are likely to find it profitable to raise prices with respect to small
business loans. The answer to this question depends on the willingness of businesses that would
obtain a line of credit from a bank at prevailing prices to substitute to another bank or to
alternatives in response to an anticompetitive price increase. The fact that some businesses use
these alternatives at prevailing prices demonstrates the feasibility of substitution, but does not
establish that such substitution would occur in an amount sufficient to make an anticompetitive
price increase unprofitable; the analysis must attempt to quantify the likely magnitude of such
substitution.
74. The next step in the analysis of the likely effects of a proposed merger on competition to
supply small business lines of credit is the determination of which banks and which bank
locations are able to compete effectively to supply the product. In the past there have been
strong reasons why small businesses tended to obtain lines of credit and some other key bank
products from nearby suppliers. In part, this was due to the information advantages a nearby
supplier would have on local enterprises, coupled with a strong preference that some services
used on an almost daily basis, such as transaction services (the provision of currency and coin,
acquisition of credit card receipts, night deposits, and electronic funds transfers) and demand
deposit accounts, be quickly accessible. The internet and internet banking may change all this,
considering that credit to small businesses is mainly based on collaterals.
75. To the extent that banks finance investment on the basis of its profit opportunities, than
local banks are relatively better placed, considering their superior knowledge of local business
conditions which tends to make them better informed about the risks associated with a new
business startup, while their proximity to local businesses tends to lower costs of monitoring
performance and updating information about credit risk. Local banks are therefore likely to be
able to identify small businesses that are better credit risks and compete successfully to win
their business by offering relatively favorable terms. It is true that some banks and other
providers of credit to small businesses are sometimes located a great distance away.41 In the
case of vehicle or equipment loans that are secured by the capital good being financed, the
riskiness of the loan is reduced and the informational advantage of local banks is eroded. In the
40
"Small" businesses are defined, e.g., by the US DoJ to be those with annual revenues in the range of one to ten million dollars.
41
Wells Fargo & Co., a California bank, initiated a strategy in 1995 of marketing lines of credit to small businesses nationwide
using direct mail. Some other banks have imitated this strategy. Oppenheim (1996) , Oppenheim (1997) More recently, Wells
Fargo has solicited applications through its web page.
24
case of lines of credit, distant suppliers lacking a branch network or significant presence in a
local market are likely to regard all but the most well-established small businesses as relatively
high risks. Distant suppliers may compete successfully to make loans that the better informed,
local lenders also identify as high risk, but they may not be competitive in the case of
borrowers that local lenders identify as relatively good risks. It is competition to supply
services to these borrowers that is at issue from a merger of local banks.42
76. In regard to the analysis of entry conditions, studies of entry in local banking markets
show that entry appears to be driven largely by factors such as the growth of economic activity
in the area and the current density of banks and branches, rather than by the measured
profitability of incumbent banks. It seems unlikely that the entry decision would turn on
increased profit opportunities in a relatively small activity such as small business lines of credit.
In addition, new entrants may require several years to establish themselves as effective
competitors to make small business loans, because of the importance of private information,
reputation, and long-standing business relationships in this activity. The possibility of
exogenous entry is an important factor to consider, but it may not be possible to count on quick
and effective entry to counter the effects of an otherwise anticompetitive merger.
Consumer bank products
77. In the case of some important consumer bank products, such as home mortgages, car
loans, and credit card loans and transactions services, distant banks and specialized non-banks
are increasingly demonstrating their effectiveness as competitors. The analysis of consumer
home mortgages and car loans bears some similarity to asset-backed loans made to businesses:
the fact that the collateral is relatively easy to evaluate makes competing in this market easier
for non-local suppliers. Credit cards in many countries are often marketed on a national basis
by direct mail and telephone. Such credit card issuers rely on credit histories assembled by
third-parties (where they exist) and on credit-scoring software that predicts credit risk. Credit-
scoring algorithms have so far proven to be more useful in this application than in the case of
small business lines of credit.
78. Consumers tend to prefer to obtain checking account services from a conveniently located
supplier. Because many consumers who commute a significant distance to work consider a
bank location near their workplace to be a good substitute for a bank location near home, the
geographic market is relatively large. Also, in some countries (in contrast to the analysis of
small business bank products) there are other non-bank depository institutions (such as thrifts or
credit unions) which are active suppliers of consumer bank products. The advent and spread of
ATMs, electronic funds transfer, and the development of home banking via computer or
telephone raise the likelihood that local banks with branch networks lose their competitive
42
In the case of a market such as that for small business lines of credit in which suppliers are significantly differentiated based on
their locations, competitive interactions among firms located along a geographic continuum can be sufficient to conclude that the
geographic market is much larger than would be suggested by the strong preferences of customers for local sources of supply. Each
firm is constrained only by the few competitors in its immediate neighborhood, but the effects of competition at one end of the
spectrum are transmitted from local area to local area and may be felt at a great distance. In theory, however, even if there is no
break in the geographic chain of substitutes, the exercise of market power over a limited portion of the spectrum may be
profitable because the profits that can be earned by increasing price to inframarginal customers who lack good alternatives more
than makes up for the loss of business at the margin. In the case of bank loans, the possibility of price discrimination simplifies the
analysis, and may make it possible to define geographic markets that are quite narrow. Price discrimination in the case of small
business loans is likely to be a successful strategy: significant arbitrage among borrowers is implausible, and banks can use
information obtained in the loan application process to develop good information about the willingness of customers to substitute
toward other suppliers. Banks can meet competition at the margin by lowering prices selectively to some customers.
25
advantage, and that geographic markets for consumer bank products become much larger. Also
internet banking is quickly developing in many countries.
Cluster market approach
79. The methodology described above considers separately the effects of a bank merger on
competition to supply each bank product. An alternative approach views the relevant product
for analyzing bank mergers as the cluster of products and services that constitutes "commercial
banking."43 This cluster includes consumer loans and consumer banking services as well as
business loans and products.44
80. Some have argued that the cluster approach is not appropriate because banks are not
constrained to raise the prices of all services they offer uniformly. Banks would not be deterred
from raising the price of one product, such as a small business line of credit, by the possibility
that prospective loan customers would substitute to other products in the cluster, such as a
checking account. Nor would an increase in the price of the loan be defeated by competition
banks face to supply other products in the cluster.
81. On the other hand, others believe that the cluster market approach gives the right answer,
especially if there were strong economies of scope in production, so that all banks supplied all
products in the cluster in the same proportion and if there were strong complementarities in
demand, so that all consumers consumed all products in the cluster in the same proportion. For
example, in analyzing a merger of firms that produce shoes, it probably would not matter much
to the conclusion if the analysis was done in terms of right shoes, or left shoes, or pairs of shoes.
82. In the case of the "commercial banking cluster", some firms in fact compete very
effectively in supplying some, but not all, products in the cluster. In addition, although
consumers and businesses do tend to purchase multiple services from their primary financial
institution, they do unbundle purchases today, and would likely unbundle to a greater extent if
their current bank increased prices of some products in the cluster. The cluster market approach
appears to understate competition in the market by ignoring the role of specialized providers of
some services.
83. The cluster market approach may overstate competition in the market by wrongly
inferring from the existence of abundant competition to supply one product in the cluster that
competition in other product markets is sufficient. For example, suppose that the relevant
geographic market was defined by commuting patterns. This is sensible in the case of consumer
banking products, for which consumers consider services from banks located near their home or
near their work to be good substitutes. But the resulting geographic markets are sometimes far
larger than is appropriate to analyze competition for many small business bank products, for
which proximity of the bank to the place of business is key. In cases in which the structure of
competition is not homogeneous throughout the broad geographic market, the cluster market
approach may miss adverse effects of the merger on local competition.45
43
U.S. v. Philadelphia National Bank, 374 U.S. 321 (1963); U.S. v. Phillipsburg National Bank & Trust Co., 399 U.S. 350 (1970)
44
In the U.S., the cluster market approach guides the decisions of the Federal Reserve Bank.
45
The Australian Competition and Consumer Commission rejected the cluster market approach when analyzing the 1997
Westpac/Bank of Melbourne merger. The ACCC concluded that the geographic market for home loans was national, but that
geographic markets for demand deposits and small business banking products did not extend beyond state boundaries. The
existence of national competitors in the home loan market was correctly understood to be irrelevant to the competitive analysis of
other product markets. Also the EC Commission does not follow a cluster market approach when defining markets in the
competitive analysis of bank mergers.
26
IX. CONCLUSIONS AND RECOMMENDATIONS
84. This report has sought to review regulations governing banks in the light of established
principles for good regulation. It raised the question of what, exactly, is the problem (i.e., the
market failure) that (prudential) regulation of banks is designed to address. In particular, while
there are some problems that need a regulatory intervention (protection of smallest depositors,
proper regulation of banks settlements, mandatory information disclosures, risk adjusted
stability concerns), for the rest the sector can be efficiently disciplined by market mechanisms
and by antitrust law. The Report addressed then the importance of switching costs for increasing
market power of each single bank, identifying regulatory solutions to reduce their importance.
85. In terms of recommendations, jurisdictions should:
promote an open, competitive, banking environment without unjustified restrictions

on entry, ownership or exit, resulting either from the rules to be applied or from
enforcement practices;
ensure that there is a proper separation between the enforcement of prudential

regulation and of the general competition rules;
86. In addition agencies should:
whatever the institutional setting, build good working relationships with the
regulatory agencies and coordinate their efforts in reviewing particular matters.
apply in enforcement the usual tools of antitrust analysis, including market

definition, market power/dominance, remedies.
87. Finally, agencies in their competition advocacy functions should consider, as appropriate
when competition concerns are raised, to advocate for:
the elimination of exclusions from competition law for financial institutions;
an environment where banks are informed in a timely and complete manner on the
debt exposure of potential borrowers (in integrated financial markets also on an
international basis), making sure to identify ways and precautions such that
information sharing does not lead to restrictions of competition;
a reduction of switching costs by depositors, for example by asking for disclosure

rules, for example on the costs associated with the closing of an account or paying
off a mortgage;
in countries with a common currency, a reduction of transaction costs on cross

border payments, including the creation of larger than national payment systems,
so as to favor the development of larger markets and greater choices for consumers;
27
a legal environment where the taking possession of collateral is possible without
delay;
especially in developing countries and consistent with maintaining a competitive

market., the creation of a legal environment where financial institutions can reduce
their risk by joint liability lending.
28
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30
November 2014
Working paper 407
Financial regulation in Kenya:

Balancing inclusive growth with financial stability
Francis M. Mwega
This case study investigates the potential tradeoffs between regulations and
stability of Kenyas financial sector and their implications for inclusive growth.
This is done in the context of six areas: (i) size and growth of the financial sector
relative to LICs and MICs; (ii) implications of a mixture of local banks (some of
which have spread to neighbouring countries), foreign banks and development
finance institutions; (iii) evolution and macroeconomic implications of financial
innovations and inclusion; (iv) cost and access to credit, especially to SMEs; (e)
prudential regulations; and (f) management of capital flows in the context of
large current account deficits, mainly financed by short-term net capital inflows
such that their easy reversibility could potentially generate a currency crisis.
Shaping policy for development odi.org

Acknowledgements
This paper is an output of the Grant "Financial regulation in low-income countries:

Balancing inclusive growth with financial stability" funded by the DFID-ESRC
Growth Research Programme (DEGRP). ODI gratefully acknowledges the support
of DFID/ESRC in the production of this study. The views presented are those of the
author and do not necessarily represent the views of ODI or DFID/ESRC.
Table of contents
Acknowledgements ii
List of figures and tables ii
1 Introduction 1
2 Size and growth of the financial sector 2

2.1 The financial sector in Kenyas Vision 2030 2
2.2 Financial Sector and economic performance 5
3 The roles of foreign banks, state-state owned banks and DFIs in Kenya 9
3.1 Foreign and state-owned commercial banks 9
3.2 Challenges of Regulating Kenya banks in other countries 12
3.3 3.4: Development Finance Institutions 13
4 Financial inclusion in Kenya 15

4.1 Trends and patterns of financial inclusion 15
4.2 Is regulation of M-PESA and other mobile money platforms adequate? 17
4.3 Financial inclusion (innovations) and macroeconomic stability in Kenya 18
5 Access and cost of credit in Kenya 19

5.1 Introduction 19
5.2 Banks lending to SMEs in Kenya 20
5.3 Cost of credit and interest rate spreads in Kenya 21
6 Prudential regulations in Kenya 27
7 Management of capital flows in Kenya 30

7.1 Evolution of current account deficit and net capital inflows in Kenya 30
7.2 ODA Flows 32
7.3 FDI Flows 33
7.4 Capital account regulation to avoid future currency or banking crises 34
8 Summary and conclusions 36
References 42
Financial regulation in Kenya: i

List of figures and tables
Figures
Figure 1: M2 as % of GDP in Kenya versus LICs and MICs 6
Figure 2: Domestic credit to the private sector as % of GDP in Kenya versus LICs
and MICs 6
Figure 3: Domestic credit to the private sector (DCP) and nominal GDP in Kenya,
2005:12 2013:12 7
Figure 4: Quarterly Growth in Financial Intermediation and GDP in Kenya, 2001Q1-
2013Q3 7
Figure 5: The money multiplier and income velocity in Kenya, December 2005 to
December 2013 18
Figure 6: The interest rates spread in Kenya (ex post lending minus deposit rate) 23
Figure 7: The interest rates spread in Kenya (ex post lending rates minus the 91
days TBR) 23
Figure 8: The Performance of the banking Sector, 2002-2012 24
Figure 9: Spreads in Low-Income and Middle-Income Countries 25
Figure 10: Selected prudential and financial stability indicators for the banking
sector 2011 - 2013 28
Figure 11: 12-months cumulative current account deficit as % of GDP, December
2005-November 2013 30
Figure 12: Net capital flows to Kenya, US$ million, December 2005-November
2013 31
Figure 13: Foreign Currency advances and deposits in Kenya, January 2007
December 2013 35
Tables
Table 1: Ganger-causality between quarterly growth in financial intermediation
(QGFI) and growth in GDP (QGGDP) 8
Table 2: The performance of commercial banks in Kenya by ownership 10
Table 3: Simulated cost of banking services to SMES 12
Table 4: Financial inclusion and exclusion in Kenya, % 15
Table 5: Overall Use of financial services, % 16
Table 6: Financial inclusion in Kenya by gender 16
Table 7: Financial inclusion in Kenya by location 17
Table 8: Comparative Analysis of Commercial Banks Ex Post Spreads in Kenya
and Selected Countries (%) 23
Table 9: Ex post Spread Decomposition in Kenya, % 26
Table 10: Net Foreign Purchases as % Share of Equity Turnover in Kenya, January
2009-December 2013 31
Table 11: Net ODA to Kenya, 2002-2011 32
Table 12: Public Debt Sustainability in Kenya 32
Table 13: Net FDI inflows to Kenya, 2002-2011 33
Financial regulation in Kenya: ii

1 Introduction 1
In the wake of the global financial crisis (GFC), many countries are prioritizing
stability by strengthening financial regulation. Although important, this might be at
the expense of inclusive growth, especially in poor countries. Without effective
regulation, financial systems can become unstable, triggering crises that can
devastate the real economy as evidenced by the recent GFC that began in 2007
(Spratt 2013). Given the primary purpose of finance is to facilitate productive
economic activity, the aim of regulation is to maintain financial stability and to
promote economic growth. This is a delicate balancing act, as too great a focus on
stability could stifle growth, while a dash for growth is likely to sow the seeds of
future crises.
There are two different ways that regulation could impact on growth and stability
(Spratt 2013). The first is by influencing the day-to-day behaviour of financial
market actors so that financial regulation has direct effects, for example, on how
much a bank chooses to lend to small and medium enterprises (SMEs). The second
is by influencing how the financial system evolves structurally, thereby creating
indirect effects. The diversity of the banking system, for example, will influence the
pattern of lending by sectors.
This case study investigates the potential tradeoff between regulation and stability
in Kenya, a small open economy which is highly vulnerable to domestic and
external shocks, but with a lightly regulated financial system and a fairly open
capital account. The study adopts an empirical approach, entailing quantitative
work and focused policy analysis. The specific objectives of the Kenya case study
are therefore to identify and analyze (i) key national risks to financial stability as
well as obstacles or gaps in financial sector for funding inclusive growth; (ii)
domestic regulatory measures that have been implemented, future options to
support financial stability and the advantages and problems of different
mechanisms for such regulation, given the country characteristics (e.g. weak
institutions, governance and law enforcement, and information problems); and (iii)
the management of capital account to support financial stability prior, during and
after the recent global financial crisis.
To make the research manageable, the study mainly focuses on the banking sector,
although capital markets, pension funds and other financial institutions may
facilitate more long term finance if banks do not provide sufficiently. The Terms of
Reference for the research project identify a number of issues that require
investigation. The paper is therefore organized around these issues. Section 2
analyzes the size and growth of the financial sector and its linkages to economic
performance; Section 3 investigates the role of foreign banks, state-owned banks
and development finance institutions (DFIs); Section 4 examines the evolution of
financial inclusion in the country; Section 5 discusses access and cost of credit;
Section 6 explains prudential regulations; while Section 7 analyzes the management
of capital flows in the country. The paper is concluded in Section 8.
1
This draws on the studys Terms of Reference.
Financial regulation in Kenya: 1

2 Size and growth of the
financial sector
2.1 The financial sector in Kenyas Vision 2030
The starting point of the study is an analysis of the features and vision of
development of the country in the medium term for example as articulated in Kenya
Vision 2030 and the Medium Term Plans (MTPs), given the countrys main
opportunities (such as the recent discovery of commercially viable oil deposits and
of rare minerals in the country) and challenges (such as continued lack of access
and high cost of credit, especially for SMEs).
Kenya Vision 2030 is the countrys development blueprint which was launched in
2008 (Kenya 2007). It aims to transform Kenya into a newly industrializing,
middle-income country providing a high quality life to its citizens by the year
2030. Its overarching objective is to make Kenya a globally competitive and
prosperous nation with a high quality of life by 2030. The Vision is based on
three pillars: the economic, the social and the political. The economic pillar aims
to improve the countrys prosperity through an ambitious economic development
programme that would achieve an inclusive average GDP growth rate of at least
10% per annum over a period of 25 years. The social pillar seeks to build a just
and cohesive society with social equity in a clean and secure environment. The
political pillar aims to realize a democratic political system founded on issue-
based politics that respects the rule of law, and protects the rights and freedoms of
every individual in Kenyan society. These three pillars are anchored on
macroeconomic stability; continuity in governance reforms; enhanced equity and
wealth creation opportunities for the poor; and investment in infrastructure; energy;
science, technology and innovation; land reforms; human resources development;
security; and public sector reforms.
The Vision identifies financial services as one of six sectors that are the key drivers
of the economy. The others are tourism; agriculture and livestock; wholesale and
retail trade; manufacturing; and business process outsourcing as well as other IT
enabled services. Subsequently, oil and mineral resources sector was added in the
second MTP after the discovery of commercially viable oil deposits and of rare
minerals in the country in 2012. The Vision aims to create a vibrant and globally
competitive financial sector that will create jobs and also promote high levels of
savings to finance Kenyas overall investment needs. It envisages a dynamic
financial sector comprised of banks, the capital market, insurance, pensions,
development finance and financial co-operatives (SACCOs). The Vision therefore
aims to revamp Kenyas fairly diversified financial sector which currently includes
the following institutions:
The capital market, with the stock market the 5th largest by market
capitalization in Africa after South Africa, Egypt, Nigeria and
Morocco.

38 insurance companies.
5 Development Finance Institutions (DFIs) that provide medium and
long-term finance.
1 mortgage company.
7 representative offices of foreign banks.
101 foreign exchange bureaus, first licensed in January 1995.
A Post Office Savings Bank, supported by 890 post offices spread
throughout the country.
About 2700 Savings and Credit Co-operative Organizations
(SACCOs) in both rural and urban areas.
2 credit reference bureau.
9 deposit-taking microfinance institutions, and so on.
The envisaged policy actions and targets of the financial sector under Vision 2030
include:
Raise savings rates from 17% to 30% of GDP. This would be

achieved, for example, by increasing bank deposits from 44% to 80%
of GDP and by lowering borrowing costs. With an average loans
deposits ratio of 76% (over 1978-2012), this implies an increase in the
bank loans from 33% to 61% of GDP. These targets indicate what the
Vision envisages as the desirable scale of banking sector to achieve
middle income status.
Enhance financial inclusion by decreasing the share of population
without access to finance by about 20%.
Increase stock market capitalisation from 50% to 90% of GDP.
Source foreign savings for investment by up to 10% of GDP from
foreign direct investments (FDI), overseas development assistance
(ODA) and sovereign bonds.
Undertake reforms of the banking sector to facilitate the
transformation of the large number of small banks in Kenya to few
larger and stronger ones.
Introduce credit reference bureau.
Streamline informal finance, SACCOs and microfinance institutions.
Deepen financial markets by raising institutional capital through
pension fund reforms and expanding bond and equity markets.
Introduce legal and institutional reforms that would enhance
transparency in all transactions, build trust and make enforcement of
justice more efficient.
Create a critical mass of skills in financial management.
The Kenya Vision 2030 was to be implemented in successive five-year Medium-
Term Plans, with the first MTP covering the period 2008 2012 (recently
completed), and the current second MTP covering the period 2013-2017 (Kenya
2013).
The flagship projects and policies that were to be implemented during the First
MTP (2008-2012) included (i) transformation of the banking sector to bring in
fewer stronger, larger scale banks; (ii) development and execution of a
comprehensive model for pension reform; (iii) pursuance of a comprehensive
remittances strategy; (iv) formulation of a policy for the issuing of benchmark
sovereign bonds; and (v) implementation of legal and institutional reforms required
for a regional financial centre.

According to the Second MTP (2013-2017), some of these projects and policies
have not been implemented at all or have been implemented only partially. The
MTP attributes this to a number of factors which include (i) the post-election
violence of 2007/2008; (ii) adverse weather impacting the agricultural sector and
the economy; and (iii) the GFC of 2007/08 and the subsequent worldwide
economic slowdown.
As a result:
Gross national savings as percent of GDP actually decreased from

15.4% in 2007/08 to 10.4% in 2011/12, well below the First MTP set
target of 24.4%.
Total investments as a percentage of GDP rose marginally to 21.9% in
2012/2013 compared to 20.1% in 2010/2011 against a set target of 30-
32%.
Credit extended to the private sector amounted to 36.8% of GDP in
2012 compared to 28.3% in 2007.
Nevertheless, the Second MTP identifies some of the following key achievements
under the First MTP:
Increased efficiency of financial services that directly supports

improved credit access by reducing transaction costs. A number of
interventions, including in the payments system, capital markets
infrastructure and credit referencing contributed to efficiency gains
during the period.
Introduction of credit reference bureau. The Banking (Credit
Reference Bureau) Regulations, 2008, were first rolled out in July
2010 and by December 2013, the two licensed credit referenced
bureaus (Credit Reference Bureau Africa Limited and Metropol Credit
Reference Bureau Limited) had received a total of 3.5 million credit
requests from banks, more than 53,000 requests from individual
customers and 12,851 customer inquiries prompted by adverse actions
by institutions. Revised regulations allowing for sharing of positive
and negative credit information by banks and deposit-taking
microfinance institutions were gazetted in January 20142.
Implementation of policies to enhance the stability of the financial
system. Attention has been focused on the deposit-taking institutions,
which account for the largest proportion of the assets in the system.
Oversight of insurance, pension and other investment funds had also
been strengthened with all the regulators adopting a risk-based
approach to the supervision of institutions/entities under their
regulation3.
2
According to the CBK, Credit Reference Bureaus (CRBs) complement the central role played by banks and other
financial institutions in extending financial services within an economy. CRBs help lenders make faster and more
accurate credit decisions. They collect, manage and disseminate customer information to lenders within a provided
regulatory framework. Credit histories not only provide necessary input for credit underwriting, but also allow
borrowers to take their credit history from one financial institution to another, thereby making lending markets
more competitive and, in the end, more affordable. CRBs assist in making credit accessible to more people, and
enabling lenders and businesses reduce risk and fraud. Sharing of information between financial institutions in
respect of customer credit behaviour, therefore, has a positive economic impact.
3
Other achievements were (i) progress towards the formation of the Nairobi International Financial Centre
(NIFC); and (ii) the enactment of the Anti-Money Laundering and Combating Financing of Terrorism Act
(AML/CFT Act) in 2009.

2.2 Financial Sector and economic performance
A lot of work has been done on the relationship between the size of the financial
sector and economic performance. Many studies find a close linkage between
financial deepening, productivity and economic growth. It is for example estimated
that policies that would raise the M2/GDP ratio by 10% would increase the long-
term per capita growth rate by 0.20.4% points (Easterly and Levine 1997, Ndulu
and OConnell 2008). According to Levine (1997), there are five functions of the
financial system through which it enhances economic growth: reducing risk;
allocating resources; monitoring managers and exerting corporate controls;
mobilizing savings; and facilitating exchange of goods and services. The impact of
these factors on growth depends, among others, on the level of financial
intermediation; the efficiency of financial intermediation; and the composition of
financial intermediation. In the simple AK model, the financial sector promotes the
growth of the economy by raising the saving rate; the marginal productivity of
capital, and the proportion of savings that is channeled to investment. However,
while low income countries need to increase the size of their financial sectors, there
are limits to this (Spratt 2013). Beyond a certain level, estimated at around 80-
100% of private credit to GDP, financial sector development becomes negative for
economic growth, both through heightened financial instability and the
misallocation of financial resources. The same applies to a too rapid growth of
private sector credit which might lead to output volatility and adverse growth
effects (Griffith-Jones with Ewa Karwowski 2013).
Kenya has a well developed financial system for a country of its income level
(Beck and Fuchs 2004). Kenyas level of financial development is not too far off
from the predicted level in a global cross-country model (Allen et al. 2012).
Christensen (2010) classifies Kenya as a frontier market economy whose financial
market is advanced, but not to the same extent as emerging markets e.g. S. Africa,
given that its M3/GDP ratio was about 34% compared to an average of 63% for
emerging market economies in 2008-10 although these indicators have improved
over time. It is therefore unlikely the size of the Kenyas financial sector is beyond
the threshold to negatively impact on economic growth. Griffith-Jones and
Karwowski (2013) also show that credit expansion in Kenya has been relatively
modest in the last decade (at 19.5% over 2000-10) compared to other selected SSA
countries (for example Angola 1545.5%, Malawi 215.6%, Mali 286.7%, Niger
174.4%, Nigeria 173.0%, Sao Tome and Principe 709.8%, Sierra Leone 384.2%,
Sudan 505.6%, Tanzania 274.4 and Uganda 152.8%).
Two measures of the depth and coverage of financial systems is the M2/GDP and
private credit/ GDP ratios. As seen in Figure 1, while the M2/GDP ratio in Kenya
closely tracks that of low-income countries (LICs), it is far below that of middle-
income countries (MICs), with a clear divergence over time. Between 1980 and
2011, their respective ratios increased from 29.9% to 49.9% for Kenya, 16.8% to
47.2% for LICs and 32.2% to 101.6% for MICs. Figure 2 also shows a similar
pattern with respect to credit to the private sector GDP ratio, with the Kenya ratio
tending to decline from the early 1990s. Between 1980 and 2011, their respective
ratios increased from 29.5% to 37.4% for Kenya, 10.5% to 29.9% for LICs and
31.3% to 76.1% for MICs.
With the country aspiring to MIC status by 2030, it apparently has a long way to go
in building its financial sector. In its monetary programming, the CBK endeavours
to keep the path of private sector credit growth rate close to the projected nominal
GDP path. As seen in Figure 3, domestic credit to the private sector (DCP) closely
tracked the nominal GDP over 2005-2009, with acceleration in 2010-2011, which
was broadly reversed in 2012, with another acceleration in the second half of 2013.

Private sector credit growth picked-up during the first half of 2013 in response to
the gradual easing of the monetary policy stance, pick-up in economic activity and,
improved investor confidence in the economy after the March 2013 elections. The
CBK reduced the Central Bank Rate (CBR) from 9.50% to 8.50% in May 2013 and
retained it at this level in the rest of 2013. Consequently, the annual growth in the
overall private sector credit rose from 12.69% in June 2013 to 21% in December
2013, above the projected growth path of 16.2% in the year to December 2013.
Figure 1: M2 as % of GDP in Kenya versus LICs and MICs
120
100
80
60
40
20
0
1980 1985 1990 1995 2000 2005 2010
KEN LICs MICs
Source: World Bank, World Development Indicators
Figure 2: Domestic credit to the private sector as % of GDP in

Kenya versus LICs and MICs
90
80
70
60
50
40
30
20
10
0
1980 1985 1990 1995 2000 2005 2010
KEN LICs MICs

Figure 3: Domestic credit to the private sector (DCP) and
nominal GDP in Kenya, 2005:12 2013:12
1,600 4,500
1,400 4,000
1,200 3,500
1,000 3,000
800 2,500
600 2,000
400 1,500
200 1,000
2006 2007 2008 2009 2010 2011 2012 2013
DCP NGDP
Source: Central Bank of Kenya
The Kenya National Bureau of Statistics (KNBS) provides quarterly GDP and
growth data since 2000. Figure 4 shows four-period moving average growth rates in
financial intermediation and GDP in Kenya over 2001Q1-2013Q3. There is clearly
some correlation (0.24) between the two series during the study period, with the
moving average quarterly GDP growth rate generally less volatile than growth in
financial intermediation (standard deviation of 0.660 versus 1.465, respectively).
Granger causality tests show significant causality from financial intermediation to
growth at 3 and 4 lags at the 5% level, with the other lags non-significant (Table 1),
supporting Kenya Vision 2030 designation of the financial sector as one of the
drivers of growth in Kenya, at least in the short-run4. On an annual basis, the
financial sector growth has consistently outpaced the real GDP growth since 2009.
Figure 4: Quarterly Growth in Financial Intermediation and GDP

in Kenya, 2001Q1-2013Q3
-1
-2
-3
-4
2000 2002 2004 2006 2008 2010 2012
Quarterly growth in Financial Intermediation

Quarterly growth in GDP
Source: Kenya National Bureau of Statistics (www.knbs.go.ke)
4
In contrast, the KNBS reports growth data on a quarter-on-quarter basis to remove the seasonal effects. By
ignoring the intermediate values, none of the Granger causality tests are significant, although there is more
correlation in the two series (0.28).

Table 1: Ganger-causality between quarterly growth in financial
intermediation (QGFI) and growth in GDP (QGGDP)
3 lags 4 lags
F-Statistic Prob. F-Statistic Prob.
QGGDP does not Granger Cause QGFI 0.867 0.466 1.426 0.244
QGFI does not Granger Cause QGGDP 2.809 0.050 2.751 0.042
In Kenya, the Second MTP identifies the following emerging issues and challenges:
(i) inadequate access to finance for SMEs; (ii) high bank lending rates and wide
interest rate spreads; (iii) high level of exclusion from financial services; and (iv)
low insurance penetration and pension coverage. We address the first three
challenges later in the paper.

3 The roles of foreign
banks, state-state owned
banks and DFIs in Kenya
3.1 Foreign and state-owned commercial banks
According to the framework papers for the project (Spratt 2013, Griffith-Jones with
Ewa Karwowski 2013), opinion on the merits of foreign banks and state-owned
banks has shifted considerably since the 2007-8 GFC. Foreign banks can have both
positive and negative effects. While they can bring valuable skills, technology and
capital, they can also bring risks. Evidence from the recent financial crisis shows
that countries where foreign banks dominate the market could suffer negative
lending shocks, as turmoil in the home markets cause parent banks to withdraw
capital from the developing countries where they operate. They can have negative
impacts, particularly by bypassing the supply of credit to the less lucrative sections
of the country. Critics of foreign bank participation therefore argue that foreign
banks may have an overall negative effect on financial deepening and inclusion
(Beck 2013). Distance constraints and informational disadvantages may prevent
foreign banks from lending to SMEs. The competitive advantage of foreign banks
can result in domestic banks being crowded out of the market and foreign banks
focusing on the top-end of the market, thus leaving SMEs and poorer households
without access to financial services. Specifically, the greater reliance of foreign
banks on hard information about borrowers as opposed to soft information can have
negative repercussions for riskier borrowers if foreign banks crowd-out domestic
banks. The existing empirical literature has not provided unambiguous findings on
the repercussions of foreign banks for financial development and inclusion and
neither has the African experience (Beck 2013).
Similarly, there has been a change in the negative perception of state-owned

commercial banks, with the some studies finding that these banks performed a
valuable counter-cyclical role in some countries; while others find them to be
associated with higher rates of economic growth (Spratt 2013). The challenge
therefore is to design and regulate them so that they can successfully fulfill their
development mandate, while avoiding the well-documented failures of the past.
Kenya currently (in December 2013) has 43 banks, with 1,313 branches and 34,064
employees, accounting for about two thirds of the financial systems assets. In
terms of shareholding, the Central Bank identifies 14 banks with foreign
ownership, accounting for 32.2% of net assets in 2012. The Central Bank also
identifies 6 banks with state ownership accounting for 24.8.2% of net assets in
2012, with the government having majority ownership in three of these, which
account for 4.2% of net total assets (Consolidated Bank; Development Bank of
Kenya; and the National Bank of Kenya) 5. The remaining 23 are local private
5
The other three banks are CFC Stanbic, Housing Finance; and Kenya Commercial Bank.

banks, accounting for 43.0% of the banking sectors net assets. Hence Kenyas
banking system is dominated by local private banks and foreign banks.
We therefore study the relative performance of the 14 foreign banks and the 6
banks with state ownership versus the local private banks in the country.
Specifically, this section addresses the following research issues:
How well have foreign banks and banks with state ownership
performed, for example, in terms of financial indicators, such as
ROAs, NPLs, etc, but also in terms of economic indicators, such as
providing access to credit to SMEs, as well as other parts of the private
sector?
What are the key challenges of regulating Kenya banks in other
countries? Foreign banks in Kenya are treated symmetrically with the
other banks in the country.
Oloo (2013) proposes a number of indicators to identify the different strengths and
weaknesses of Kenyan banks and provides data on individual banks, which we
aggregate into the various ownership components, weighted by the value of assets
in 2012. These include the rates of return on assets and capital; cost of funds,
efficiency ratio and the ratio of non-performing loans (see Table 2).
Table 2: The performance of commercial banks in Kenya by

ownership
Foreign banks Banks with state- Banks with majority state Local private All banks
ownership ownership banks
Return on assets, %6
2009 3.6 2.8 3.7 3.8 3.6
2010 4.7 3.7 4.2 4.8 4.6
2011 4.7 4.1 3.1 4.8 4.7
2012 5.2 4.1 1.4 4.8 4.9
Return on capital, %7
2009 36.7 30.0 27.2 30.3 32.3
2010 46.1 23.4 30.8 46.6 40.7
2011 50.6 44.9 27.6 50.4 49.1
2012 51.9 38.0 12.7 50.9 48.0
8
Average cost of funds, %
2009 3.0 2.7 3.5 4.0 3.4
2010 2.2 2.1 2.9 3.4 2.7
2011 2.5 2.3 3.8 3.8 3.0
2012 4.9 5.3 7.6 7.0 6.0
6
Return on assets (ROA) is the ratio of profits before tax to average total assets (at beginning and end of the year).
A higher ratio is desirable.
7
Return on capital (ROC) is measured as the return to the average core capital (at the beginning and end of the
year). A higher ratio is desirable.
8
The ability of a bank to acquire external funding cheaply to boost its investments is a critical measure. There are
two main sources of funds for the bank: (a) deposits from customers; and (b) borrowed funds. This ratio therefore
is a measure of how cheaply, or expensively these funds have been acquired: it reflects the ease with which a bank
is able to secure such funds. A lower rate is desirable.

Efficiency ratio, %9
2009 53.1 66.4 64.4 58.8 60.0
2010 47.1 61.4 58.0 51.6 53.6
2011 45.8 56.8 63.1 51.6 52.0
2012 50.7 57.0 74.8 52.0 53.9
10
Non-performing loans to advances ratio, %
2009 4.5 9.7 10.1 6.4 6.7
2010 3.6 6.4 6.6 5.1 5.0
2011 2.7 4.4 6.5 3.7 3.6
2012 2.4 5.2 8.8 3.6 3.7
The foreign banks have done as well as local private banks with both having an
average rate of return on assets of 4.6% over 2009-2012, ahead of banks with state
ownership (3.7%) and state-owned banks (3.1%). The poor performance of the
latter is attributed to poor legacy in the past of poor governance and massive
interference by the state in their management.
The same pattern is repeated in the other indicators. Foreign banks have on average
done slightly better on the rate of return on core capital (46.3%) over 2009-2012
when compared to local private banks (44.6%), ahead of banks with state
ownership (34.1% and 24.6%, respectively). They also have the lowest cost of
funds (index of 3.2%) together with banks with state ownership (index of 3.1% and
4.5%, respectively) and local private banks (index 4.6%). Foreign banks are also
the most efficient (with an average score of 49.1%) slightly ahead of local private
banks (score of 53.5%), with banks with state ownership the least efficient (scores
of 60.4% and 65.1%, respectively). Finally, foreign banks have the least non-
performing loans ratio (average 3.3% over 2009-2012), followed by local private
banks (4.7%) and banks with state ownership (6.4% and 8.0%, respectively).
It is therefore apparent that foreign banks largely behave like local private banks,
except that they have cheaper sources of finance due to their reputation capital.
They are also very diverse so that it is difficult to generalize their behavior. They
include for example (i) the traditional multinational banks from Europe and USA
(Barclays, Citibank, Habib A.Z. Zurich and Standard)11; (ii) banks from Asia and
the Middle East (Bank of Baroda, Bank of India, Gulf African Bank, Habib Bank
and Diamond Trust Bank, the last two from Pakistan and owned by the Aga Khan
Fund for Economic Development); (iii) pan-African banks (Bank of Africa, United
Bank of Africa; and Ecobank); and (iv) Islamic banks (First Community Bank
licensed in 2007 with some shareholding from Tanzania and Gulf African Bank
licensed in 2008). K-Rep Bank was incorporated as a commercial bank in 1999,
from microfinance NGO and has largely maintained the microfinance banking
model.
According to World Bank (2013), most foreign banks have dedicated units serving
SMEs. There are however a few exceptions such as Citibank and, to a less extent,
Standard that focus on corporate and high-end clients, and hence do not lend to
SMEs. Oloo (2013) simulates the cost of provision of banking services to SMEs
from customers perspective. In the first scenario, he considers a small business
9
The efficiency ratio is measured by taking the total operating expenses, which include the banks overheads and
weighting them against the total operating income. A lower ratio is desirable.
10
Non-performing loans is the single most important threat that a bank can face. To assess its magnitude, it is
weighted against the total portfolio of all loans and advances that the bank has extended. A high ratio is a reflection
of imprudent lending practice and poor credit management. A low ratio is therefore desirable.
11
Barclays and Standard have been in the country for more than 90 years.

firm, with a turnover of about US$ 60,000 (at the exchange rate on Ksh 84.5 per US
dollar in 2012). He assumes the annual cost of opening and maintaining a business
current account to require 6 50-leaf cheque books, 48 customer withdraws, 48
bankers cheques, 24 standing orders, charges for 600 transactions and 12 ledger
fees. In the second scenario, he considers a medium-sized business enterprise with
a turnover of about US $ 6 million per year. He assumes the annual cost of opening
and maintaining a business current account requires 12 50-leaf cheque books, 96
customers withdraws, 96 bankers cheques, 96 standing orders, charges for 6,000
transactions and 12 ledger fees.
He derives the following total costs of operating the accounts by type of bank
ownership. The results show that local private banks have the lowest costs to
SMEs, followed by foreign banks and then banks with state ownership.
Table 3: Simulated cost of banking services to SMES
Small firm, US$ Medium-sized firm, US$
Foreign banks 795.5 1751.0
Banks with state ownership 825.3 1902.0
Banks with majority state ownership 800.6 1835.5
Local private banks 733.0 1667.7
3.2 Challenges of Regulating Kenya banks in other countries
In Kenya, some banks have expanded their branch networks in the region. By
December 2012, Kenyan banks had established 282 branches in neighbouring
countries (Uganda 125, Tanzania 70, Rwanda 51, Burundi 5, and South Sudan 31).
Such banks pose an increasing challenge for regulators across Africa (Beck 2013).
Financial integration implies that the negative externality costs of bank failure go
beyond national borders that are not taken into account by national regulators and
supervisors. Close cooperation that can help internalize these cross-border
externalities, although the institutional extent of such cooperation should be a
function of the strength of externalities but also the heterogeneity of countries
legal and regulatory frameworks.
Central banks in Eastern African countries have, for example, signed a

Memorandum of Understanding (MOU) to facilitate information sharing and
supervisory co-operation for regional banking groups. The CBK has developed and
implemented a consolidated supervision program for the effective oversight of
banking groups. As part of efforts aimed at implementing consolidated supervision,
it launched Prudential Guidelines on Consolidated Supervision and convened two
Supervisory College meetings in 2012 and 2013 bringing together all Central
Banks of the East African countries where Kenyan banks currently have operations.
The introduction of guidelines on Country and Transfer Risk, Risk-based
Supervision and Consolidated Supervision is timely given the increasing cross
border risks faced by the Kenyan banks as they expand regionally 12. The East
African Central Banks are also currently working to harmonise their banking sector
supervisory rules and practices as a prerequisite for the envisaged East African
Monetary Union (EAMU). The recently established Committee of African Bank
12
Interview with CBK Governor in Oloo (2013).

Supervisors as part of the African Association of Central Banks can give this
cooperation further impetus, by enabling informal exchange of information and
experiences and networking possibilities (Beck 2013).
Two issues appear critical in this increasing regulatory cooperation (Beck 2013).
First, based on the experience of European countries, there should be a focus on
proper preparation for resolution. Non-binding MOUs and Colleges of Supervisors
limited to information exchange are of limited use in times of bank failure. Second,
it is important not to ignore development benefits of foreign banks when
considering them as potential source of fragility. Financial stability is not an
objective in itself, but rather a necessary condition for sustainable financial
deepening, with the main goals of economic development and poverty alleviation.
3.3 3.4: Development Finance Institutions13
It has long known that commercial banks will under-supply long-term finance, and
under-serve key sectors, such as agriculture or small and medium enterprises
(SMEs), and that these market failures are more acute in LICs (Spratt 2013).
Although DFIs are an obvious solution, they were widely seen as inefficient,
ineffective and corrupt so that the cure was thought worse than the disease. This
perception has shifted significantly since the recent financial crisis, where some
countries with significant DFIs saw them fill the gap left by the commercial banks.
The success of DFIs in countries as diverse as Brazil, South Africa and Germany
has shown it is possible to avoid many pitfalls.
Is there a need for a greater role for DFIs in Kenya, to cover gaps in financing in
key sectors, essential for inclusive growth, as in Asia (Hosono 2013)? What are
experiences of DFIs in Kenya? How can good DFIs be expanded /created, taking
into account issues of incentives and governance?
There is no doubt that DFIs in Kenya could play a significant role in the financial
sector by providing long-term finance (CBK 2013). Targeted interventions for
specific sectors or groups like SMEs, youth, women, and so on would best be
served by DFIs. This is recognized under Vision 2030, where DFIs are expected to
contribute towards enhanced financial access and investment goals. For DFIs to
play this role and fulfill market expectations, they require enhanced capacity with
clear ground rules and enhanced finance allocation. In Kenya, DFIs are under the
purview of the National Treasury. But the sector remains small. The five existing
DFIs account for less that 1% of the assets of the banking sector and had lent only
Ksh.6.8 billion (approximately USD80.73 million) as of June 2012 when compared
to Ksh 1,224.11 billion (approximately USD 14.53 billion) of credit to the private
sector from the countys banking sector (CBK 2013). Hence these DFIs supplied
only about 0.56% of the banking sector credit to the private sector.
According to CBK (2013), some Kenyan DFIs converted to commercial banks in

the1990s (e.g. DFCK to DBK Ltd) in order to mobilize deposits. But the journey
was not smooth due to their inability to comply with the prudential. As a result,
they experienced high non-performing loans and high concentration risk due to
dependence on a few borrowers. The DFIs-turned-banks non-compliance with the
prudential requirements could have mainly been driven by the conflict of their
primary mandate of long term lending and the banking regulatory framework which
is applicable to all banks irrespective of their circumstances. They were therefore
unsuccessful in mobilizing long term local deposits to match their assets profile.
13
The five existing DFIs service industry and commerce (IDB Capital, Kenya Industrial Estates and Industrial and
Commercial Development Corporation); agriculture (Agricultural Finance Corporation); and tourism (Kenya
Tourist Development Corporation).

The failure of DFIs to customize their policies and practices towards commercial
bank orientation was compounded by weak corporate governance structures arising
from operating for a long period without prudential guidelines.
According to a Presidential Task Force on Parastatals Reform (2013), the role of

DFIs has atrophied since the mid-1980s which the Task Force attributes to DFIs
inability to respond successfully to the change to a liberal policy regime in the
1980s and 1990s; narrow credit focus and limited sources of financing from donors
and government; as well as poor governance in part due to state interference,
coupled with ineffective management and low staff morale. The Task Force
therefore advocates consolidating DFIs under a Kenya Development Bank (KDB)
with sufficient scale, scope and resources to place a catalytic role in Kenyas
economic development by providing long-term finance and other financial and
advisory, investment and advisory services. CBK (2013) as well calls for
introduction of prudential regulation and supervision consistent with their mandate
(for example the AADFI standards of the Association of African DFIs) as done in
several countries including Tanzania, Nigeria, China, Swaziland and Korea which
already regulate and supervise DFIs. As a result, Kenya would only customize the
regulatory and supervisory frameworks to local circumstances. An effective
regulatory and supervisory framework should adequately address the potential risks
faced by DFIs by tailoring them to suit their unique features, especially the tradeoff
between the focus on economic development orientation and long term structure of
assets. Regulation and supervision must also continuously evolve to keep pace with
innovations.

4 Financial inclusion in
Kenya
4.1 Trends and patterns of financial inclusion
The envisaged targets of the financial sector under Vision 2030 included enhancing
financial inclusion by decreasing the share of population without access to financial
services by about 20%. Financial inclusion in Kenya has been monitored through
financial access surveys of which three so far have been conducted: in 2006, 2009
and 2013. These surveys reveal that Kenyas financial inclusion landscape has
undergone considerable change. The proportion of the adult population using
different forms of formal financial services has increased from 27.4% in 2006, to
41.3% in 2009 and stood at 66.7% in 2013, amongst the highest in Africa
(Table 4)14. In addition, the proportion of those accessing informal financial
services has declined substantially from 33.3% in 2006 to 27.2% in 2009 and to
only 7.8% in 201315. Overall, the proportion of the adult population totally excluded
from financial services has declined from 39.3% in 2006 to 31.4% in 2009 and to
25.4% in 2013. With a decline of 35% between 2006 and 2013, this has
substantially exceeded Vision 2030s expectations.
Table 4: Financial inclusion and exclusion in Kenya, %
2006 2009 2013
Formal 27.4 41.3 66.7
Informal 33.3 27.2 7.8
Excluded 39.3 31.4 25.4

Source: Financial Sector Deepening Kenya (2013)
The last half decade has therefore seen a massive increase in access to financial
services in the country. Deposit accounts have, for example, increased from about 2
million to 18 million while loan accounts have increased from 1 to 3 million since
200716. This is reflected in Table 5 which shows a substantial increase in the use of
bank services, from 13.5% in 2006, to 17.1% in 2009 and to 29.2% in 2013.
However, the most dramatic increase is usage of mobile money services from
virtually 0% in 2006 to 28.4% in 2009 to 61.6% in 2013. The rapid growth of
14
Formal financial institutions are defined broadly to include commercial banks, deposit-taking microfinance
institutions (DTMs), foreign exchange bureau, capital markets, insurance providers, deposit-taking SACCOs
(DTSs), mobile phone financial service providers (MFSP), Postbank, NSSF, NHIF, credit-only MFIs, credit-only
SACCOS, hire purchase companies and the government.
15
The informal financial sector includes informal groups, shopkeepers and merchants, employers, and money
lenders who are all unregulated under structured law provisions.
16
Interview with the Governor, Central Bank of Kenya. EastAfrican, August 24-30, 2013.

mobile money banking services shows its ability to overcome problems of physical
access and high relative costs (Spratt 2013). Mobile banking has introduced
alternative channels at financial service provision to conventional banking and has
provided clear, quick and convenient platforms to conduct a range of financial
transactions. The adoption of mobile money service M-PESA in 2007 far exceeded
expectations. Currently, the four mobile money services (M-PESA, Airtel Money,
YuCash and Orange Money) have close to 20 million customers, handling over
US$ 54.4 million worth of transactions per day. M-PESA however remains
dominant with 82% of market share, Airtel Money 15%, YuCash 2% and Orange
Money 1%.
Table 5: Overall Use of financial services, %
Usage of: 2006 2009 2013
Banks 13.5 17.1 29.2
SACCOs 13.5 9.3 9.1
Microfinance 1.8 3.5 3.5

institutions
Informal groups 39.1 29.5 27.7
Mobile money 0.0 28.4 61.6

financial services
Source: ibid.
Financial inclusion has varied with the socio-economic statues of the population.
According to FSDK (2013), financial exclusion in 2013 varied from 55.3% for the
poorest 20% of the population to 5.7% for the wealthiest 20% of the population. As
well, financial exclusion was highest for those without any education (60.7%) and
lowest for those with tertiary education (1.8%). Table 6 shows that women use of
formal financial services has lagged behind that of men, but the gap substantially
reduced between 2009 and 2013, while exclusive use of informal financial services
have declined for both men and women. Similarly, Table 7 show that rural areas
have lagged behind urban areas in access to financial services
Table 6: Financial inclusion in Kenya by gender
2006 2009 2013
Male Female Male Female Male Female
Formal 34.3 21.0 49.3 34.4 71.1 62.7

financial
institutions
Informal 27.0 39.2 19.8 33.9 4.7 10.8
Excluded 38.7 39.8 31.0 31.8 24.2 26.6
Source: ibid.

Table 7: Financial inclusion in Kenya by location
2006 2009 2013
Rural Urban Rural Urban Rural Urban
Formal 24.6 35.7 35.5 63.1 59.6 80

financial
institutions
Informal 37.0 22.2 30.0 16.8 9.8 4.4
Excluded 38.4 42.0 34.5 20.1 30.6 15.6
Source: ibid.
On use of financial services by business owners, 36.8% used banks; 4.2%

SACCOs, 7.8% microfinance institutions, 33.5% informal groups and 72.6%
mobile money financial services, exhibiting the same pattern as for the wider
population.
4.2 Is regulation of M-PESA and other mobile money platforms

adequate?
The success of M-PESA in Kenya is often used to argue for a light-touch approach,
where mobile banking was allowed to flourish (Spratt 2013). Possible systemic and
individual users risks seem to require careful evaluation, however. It is clearly
important to enable, rather than stifle, innovation but it is also clear that regulation
should be comprehensive in the longer term. How to strike the right balance here is
an important area of research.
In responding to this question, the CBK admits that the technology used to deliver
the mobile money services carries inherent threats, the main ones being operational
risk, financial fraud and money laundering 17. However, prior to the launch of
mobile banking services by the various companies, the CBK requires them to
provide a detailed risk assessment, outlining all potential risks and satisfactory
mitigating measures they have put in place. In the case of M-PESA, Safaricom
sought authorization from CBK to undertake the money transfer business. In
evaluating the proposal, the CBK considered the request on the basis of safety,
reliability and efficiency of the service. In addition, precautionary measures were
put in place to ensure that the service did not infringe upon the banking services
regulatory framework as provided for in the Banking Act. Following the enactment
of the National Payments System Act in 2011, the CBK now has the oversight
mandate of the National Payments System. All payment service providers including
mobile phone service providers offering money transfer services fall under the
CBKs regulatory framework18.
The Kenya Bankers Association (KBA) has however complained that the Mobile
Network Operators (MNOs) offer services similar to those offered by banks, yet
17
Interview with the CBK Governor in Oloo (2013). This section draws on this interview.
18
According to the December 2013 Monetary Policy Statement, The CBK will continue to support development
of new products and innovations towards enhancing financial access in order to encourage economic growth. In
this regard it will continue to propose suitable legislation aimed at ensuring that such innovations are regulated
accordingly to enhance market confidence. The Bank will also continue to monitor any new financial derivatives
and /or innovations in the market that could have adverse effects on market stability.

they are not subject to similar regulations19. KBA argues that there is a blurred line
between what constitutes taking deposits from customers as done by MNOs and
taking deposits for savings as done by banks. The e-float for example which is kept
in special accounts in banks by MNOs is not subject to banking regulations such as
subjecting them to deposit insurance, undermining the security of such deposits in
case of a bank failure or financial crisis. The response by MNOs is that the
possibility of such risks making a huge impact on clients is very rare as the e-float
is relatively small, and it is distributed across several banks.
4.3 Financial inclusion (innovations) and macroeconomic

stability in Kenya
Increased financial inclusion through financial innovations does not seem to have
compromised financial stability. First, the stock of e-money is backed 100% by
accounts held at commercial banks. The mobile money e-float is also a small
proportion of the other monetary aggregates in terms of size for it to matter much
for monetary policy. Weil et al. (2011) estimate the outstanding stock of M-PESA
e-float at 1.6% of M0 and 0.4% of M1.
Second, while there has been increased instability in monetary relationships post-
2007, reflected in a decline in the income velocity of circulation and an increase in
the money multiplier undermining the conduct of monetary policy which assumes
stable monetary relationships, stability seems to have been re-established since
2010. The instability was therefore a temporary phenomenon. Velocity which is the
ratio of nominal GDP to money supply (M3X) declined significantly from a
monthly average of 2.50 in 2006 to 2.09 in 2010 and stabilized at that level
thereafter. Similarly, the money multiplier increased from a monthly average of
5.49 in 2006 to 5.96 in 2010 and stabilized at that level. The demand for money
also shows stability post-2010 (Weil et al. 2011).
Figure 5: The money multiplier and income velocity in Kenya,

December 2005 to December 2013
7.6 2.6
7.2 2.5
6.8 2.4
6.4 2.3
6.0 2.2
5.6 2.1
5.2 2.0
4.8 1.9
2006 2007 2008 2009 2010 2011 2012 2013
MONEY MULTIPLIER INCOME VELOCITY
19
See the Daily Nation, January 26, 2014, Banks revive battle with money service providers

5 Access and cost of
credit in Kenya
5.1 Introduction
This section looks at access to finance, where the key problem is how to provide
financial access that is both affordable and suited to the needs of poor people
(Spratt 2013). On this, the costs of providing basic banking services are often
prohibitive, and credit is either unavailable or too expensive. The reasons are well
understood: providing physical access in rural areas is inherently expensive, and
providing financial services for people with few financial resources entails high
relative costs; a lack of credit history and collateral is a key constraint on extending
credit, and small loan sizes also mean high transaction costs. Extending financial
access thus tends to be unattractive for banks in LICs. Although microfinance
institutions (MFIs) have partially filled this gap, their record is mixed.
Kenyas financial sector has undergone reforms since the late 1980s aimed at
achieving (i) stability so as to ensure that banks and other financial institutions
taking deposits can safely handle the publics savings and ensure that the chances
of a financial crisis are kept to a minimum; (ii) efficiency in the delivery of credit
and other financial services to ensure that the costs of services become increasingly
affordable and that the range and quality of services better caters to the needs of
both savers and investing businesses; and (iii) improved access to financial
services and products for a much larger number of Kenyan households (Nyaoma
2006). The country formally adopted financial sector forms in 1989, supported by a
$170 million World Bank adjustment credit. Financial reform proposals were first
incorporated in the 198690 structural adjustment program. The main features of
the program included: (i) interest rate liberalization which was achieved in July
1991; (ii) liberalization of the treasury bills market in November 1990 which was
accompanied by introduction of the treasury bonds of long-term maturities - one,
two and five-year maturities; (iii) setting up a Capital Markets Authority in 1989 to
oversee the development of the equities market; (iv) abolition of credit guidelines
in December 1993 (which were in existence since 1975 in favour of agriculture);
and (v) improving and rationalizing the operations and finances of the DFIs.
Financial sector reforms have undoubtedly strengthened Kenyas banking sector in

the last decade or so, in terms of product offerings and service quality, stability and
profitability (Kamau 2009). Major indices show an improvement, including: (a) the
capital adequacy ratio; (b) rates of return on assets (ROA); (c) non-performing
loans; (d) growth and composition of credit to the private sector; and (e)
composition of banks assets and liabilities20.
20
Assets of the banking system in Kenya are dominated by loans and advances, government securities and cash
reserves at CBK. Kenya commercial banks hold minimal derivatives or asset-based securities in their portfolios.
They mainly hold risk-free government securities.

5.2 Banks lending to SMEs in Kenya
The World Bank (2013) devotes itself to this issue. The report notes that although
retail banking has improved markedly in Kenya in the last decade, access to credit
for SMEs is still limited, with SMEs accounting for about 90% of all enterprises in
the country, according to the Kenya Private Sector Development Strategy 2006-10.
SMEs are provided with financial services by a range of institutions, including
banks, non-bank financial institutions, savings and credit cooperatives (SACCOs),
and microfinance institutions. The report cites an analysis of firms that made it to
the 2013 Top 100 mid-sized companies survey that showed that the number of
SMEs that turned to lenders for credit lines and overdrafts increased to 67%
compared to 57% in 2012. Most of the surveyed entrepreneurs cited the high cost of
credit as the reason for cash flow challenges they face, leaving them with no
recourse but to dig deeper into their personal savings or turn to family friends to
raise funds for day to day operations.
The report notes there is some evidence that Kenyan banks are actually ahead of
their counterparts in Nigeria and South Africa in lending to SMEs. From field
surveys, about 17.4% of total bank lending goes to SMEs in Kenya, compared to
only 5% in Nigeria, and 8% in South Africa. Kenyas ratio is comparable to that of
Rwanda, which is a smaller market with a relatively small presence of large-scale
firms (Aziz and Berg 2012). These numbers are supported by the innovations in the
banking sector that suggest a strong appetite for SME lending.
According to a survey reported in the World Bank (2013), involvement of Kenyan

banks in the SME segment is growing, both in terms of size and the diversity of
their approaches to the SME client relationship. This has been driven by
innovations specifically targeting this market. These innovations started through
microfinance-rooted institutions scaling up to becoming commercial banks and now
include innovations with lending models and technology in the retail banking
segment by other institutions, most notably Equity Bank. In addition, in Kenya
there are active markets for hire-purchase and invoice-discounting mainly provided
by banks to SMEs which deliver to government and larger enterprises with
reputable payment histories. Adoption of these instruments has facilitated entry by
some mid-sized Kenyan banks into the SME financing.
According to this survey, Kenyan banks tend to provide more working capital than
investment loans. Demand factors play a role with Kenyan firms citing working
capital shortages as the primary reason for approaching banks. The distribution of
loans may also reflect an assessment by banks that long-term loans are too risky.
According to the banks interviewed, on average it takes 190 days to recover bad
loans in Kenya, with a rate of recovery of about 80%; the cost is about 40% of the
amount of the loan. The situation seems somewhat better in Rwanda, where on
average it takes 135 days to recover loans, the rate of recovery is about 85%, and
the cost is about 10% of the loan. Nigerian banks operate in the most difficult
environment: on average they need 246 days to recover a loan and are able to
recover on 30% of the loan.
According to the World Bank (2013), most Kenyan banks have dedicated units
serving SMEs. At most institutions, however, the unit is a subunit of the retail
banking unit rather than a division. Products are largely standardized, although the
number of banks such as Equity Bank, Cooperative Bank and K-Rep Bank are
producing customized loan products for the SME sector. Some banks provide
training to their clients to improve their management skills and financial reporting.
Lending remains based on collateral. Risk management is increasingly automated,

although domestically owned banks have not yet embraced the use of scoring and
risk-rating technologies on a large scale.
The report notes that banks prefer to engage with formal firms rather than with
informal or semi-informal firms. As part of the loan application, they require SMEs
to provide a variety of documents certifying their compliance with government
regulations and providing details about their finances. The most common
documents required include the registration certificate from the Business Registrar
(Attorney Generals Office); the Single Business Permit, obtained from the City
Councils: and sometimes the certificate of compliance from the Kenya Revenue
Authority. These filing requirements are quite onerous and often discourage SMEs
from seeking bank financing.
According to World Bank (2013), donors have been encouraging banks to engage
in SME financing, providing bank-specific lines of credit and partial credit
guarantees. Donors prefer this bank-specific approach to establishing schemes that
are open to all qualified institutions, although a more open approach would be
better suited to encouraging competition. In markets where SME financing is in its
infancy, schemes can augment banks willingness to push the frontier and
demonstrate that lending to SMEs can be a viable and profitable business line.
U5AID reportedly operates the largest credit guarantee scheme in Kenya, a US$70
million program. ARIZ, a risk-sharing program funded by the African
Development Bank, guarantees 50% of all loans in the portfolio. Other donors that
are encouraging lending to SMEs include the European Investment Bank, Proparco,
FMO, DEG, SIDA, KfW, Norlund, and the China Development Bank.
On policy, the report recommends that tapping the full growth and job-creating
potential of the SME sector will entail a move towards providing growth capital
and not just working capital. A growing number of private equity providers are
active in East Africa in general and in Kenya in particular. Most of them are not
interested in SMEs. A number of new entrants cite lack of information and
expertise as a deterrent to venturing into this market. Technical assistance could
help bridge the distance between the demand for and the supply of private equity.
Improving the listability of SMEs as well could increase their access to equity
finance. Kenyan SMEs have shown some interest in tapping equity financing to
grow, by turning to the growing number of private equity funds or by issuing shares
on the stock market. In fact, about 28% of firms surveyed in the Top 100 Mid-Sized
Companies said they were considering listing on the Nairobi exchange, which now
has a special segment, the Growth Enterprise Market Segment (GEMS) for SMEs.
5.3 Cost of credit and interest rate spreads in Kenya
One of the key criticisms of the Kenyan banking sector is that the cost of credit and
the interest rate spread remains high. This has raised concerns from government,
regulators and parliament, with the latter trying severally to introduce legislation to
control them. As seen in Figure 6, the interest rate spread was fairly stable,
although gradually increasing, between January 2005 and October 2011, averaging
9.56%. It jumped to a peak of 13.05% in December 2011 following a decision by
the Central Bank of Kenya to raise the policy Central Bank Rate (CBR) from 11%
to 16.5% in November 2011 and to 18% in December 2011 where it stayed until
June 2012. As a consequence, both deposit and lending rates rose sharply as the
CBK attempted to control inflation and stem currency depreciation. As seen in the
figure, the increase in the spread was because banks raised the lending rate more
than the deposit rate. The spread subsequently gradually decreased as the central

bank has relaxed monetary policy, lowering the CBR from 18% to 9.5% during
January-April 2013 and to 8.50% since May 2013.
At an average of 10.02% over 2005-13, the interest rate spread has therefore
remained high despite improved economic conditions in the country. According to
the critics of commercial banks, there have been many developments that have
taken place in the country that should have significantly reduced the spread (Oloo
2013). These include (i) improvements in technology (ATMs, mobile phones, etc)
that have reduced the cost of doing business, and the need for human resource
requirements; (ii) agency banking, with 16,000 agents that are now available to
banks at nominal cost; and (iii) introduction of credit reference bureau to reduce
information asymmetries and risk. As well, the opening of Currency Centres across
the country has reduced costs associated with transporting cash for the banks.
The spread between the lending rate and the risk free 91-days Treasury bill rate is
also high and more volatile at an average of 7.43% over 2005-13 (Figure 7). This
spread can be taken as a measure of the risk premium faced by banks. It captures
perceived risk by lenders of borrowers ability to pay; as well as inefficiency in the
banking system. It has however declined since the mid-2011 denoting a decline in
the risk premium. The collapse of the 91-days TBR in 2005 was due to a reduction
of the required cash ratio from 10% to 6% in 2003 which injected a lot of liquidity
into the economy, drastically lowing interest rates.
Table 8 compares interest rate spreads in Kenya vis a vis a few selected comparator
countries over 2000-2012. The spreads are on average relatively higher in Kenya
than in Malaysia, Botswana, South Africa, Nigeria and Tanzania. They are only on
average higher in Uganda. The high spread in Kenya may reflect the comparably
higher lending by Kenyan banks to SMEs that are perceived to have a higher risk
premium.
Alongside high lending interest rates and wide spreads, the banking sector profits
have increased over time. Profits before tax increased from about US$ 70 million in
2002 to US$ 1,256 million in 2012, an average growth rate of 38.7%. The major
sources of income were interest on loans and advances (average of 49.6% of total
income during the period) which increased over time reflecting an increase in the
spread; and fees and commissions (14.6%), and government securities (19.8%)
which declined during the period (Figure 8). As also seen earlier in Table 2, the
banking sector experienced a general improvement in performance indices over
2009-2012, although there were some setbacks in 2012 with respect to the average
return in core capital, average cost of funds, the efficiency ratio and non-
performing loans ratio due to an adverse macroeconomic environment in late-2011.

Figure 6: The interest rates spread in Kenya (ex post lending
minus deposit rate)
24
20
16
12
0
05 06 07 08 09 10 11 12 13
LENDING_RATE
DEPOSIT_RATE
SPREAD
Figure 7: The interest rates spread in Kenya (ex post lending

rates minus the 91 days TBR)
24
20
16
12
-4
05 06 07 08 09 10 11 12 13
LENDING_RATE
TBR_91_DAYS
SPREAD2
Table 8: Comparative Analysis of Commercial Banks Ex Post

Spreads in Kenya and Selected Countries (%)
Year Malaysia Botswana South Nigeria Kenya Tanzania Uganda

Africa
2000 4.31 6.06 5.30 9.58 14.24 14.19 13.08
2001 3.75 5.66 4.40 8.18 13.03 15.25 14.19
2002 3.32 5.75 4.98 8.10 12.97 13.11 13.53
2003 3.23 6.45 5.20 6.50 12.44 11.47 9.09

2004 3.05 5.90 4.74 5.48 10.10 9.94 12.86
2005 2.95 6.48 4.58 7.42 7.80 10.52 10.85
2006 3.34 7.59 4.03 7.16 8.50 8.93 9.61
2007 3.24 7.60 4.01 6.65 8.18 7.39 9.84
2008 2.95 7.87 3.51 3.51 8.71 6.73 9.78
2009 3.00 6.29 3.17 5.07 8.84 7.06 11.20
2010 2.50 5.86 3.37 11.06 9.81 7.98 12.49
2011 2.00 5.85 3.33 10.32 9.42 8.18 8.81
2012 1.81 7.39 3.31 8.39 8.15 5.95 10.08
Average 3.04 6.52 4.15 7.49 10.17 9.75 11.19

The persistently high spreads and growing profitability of the industry have left it
open to repeated criticisms of collusive price-setting behaviour (World Bank 2013,
Oloo 2013). In the popular press and elsewhere, Kenyan banks have repeatedly
been portrayed as using their market power to extract high interest rates from
businesses, especially SMEs. The larger banks have been particularly subject to this
criticism, based on the perception that they use their reputational advantage to
charge higher rates on loans and advances, while not having to pay high interest
rates to attract deposits. This perception of high spreads at big banks is reinforced
by data showing them to be the most profitable segment of the industry. The
competition Commission has launched an investigation into the price-setting
behaviour of commercial banks, based largely on the concerns of consumers
regarding interest rate spreads.
Figure 8: The Performance of the banking Sector, 2002-2012
1,400 80
1,200 70
1,000 60
800 50
600 40
400 30
200 20
0 10
02 03 04 05 06 07 08 09 10 11 12
PROFITS, US$M
INTEREST ON LOANS AS % OF INCOME
INTEREST ON GOV'T SECURITIES AS % OF INCOME
NET FEES & COMMISSIONS AS % of INCOME
There have been several studies of interest rate spreads in Kenya (Abdul et al.
2013, Were and Wambua 2013, World Bank 2013). The World Bank (2013)
provides a good summary of these studies, first noting that that, while no hard rules
prescribe the optimal interest spreads that correspond to specific market conditions,
market lending rates are typically a mark-up over the risk-free (government paper)
interest rate, the magnitude of the mark-up depending on a host of factors,

including industry structure, tenor, overhead costs, and risk. Determining this mark-
up when information markets are incomplete is especially challenging.
According to the Kenya Bankers Association (Oloo 2013), interest rate spreads
reflect the macroeconomic, regulatory and institutional environment under which
banks operate such that the determinants of the spread are in four categories:
macroeconomic factors and the state of financial sector development; industry-
specific factors; and bank-specific factors. We discuss these factors below.
(a)Macroeconomic environment. The size of the spread will depend on the
macroeconomic environment and the countrys monetary policy stance. There is a
high correlation between the spread and the CBR. The Central Bank of Kenya, for
example, raised the benchmark interest rate by nearly 300% (from 6.25% to 18%)
in less than three months in late-2011. As a result, banks raised their lending and
deposit rates. After August 2012, when the central bank started to lower the policy
rate as inflation moderated, bank lending rates were not as responsive. Although
banks did eventually lower their lending rates, the interest rate spread remained
high. According to the Kenya Bankers Association (Oloo 2013), the banks best
interests are served when interest rates remain low and stable, arising from a stable
macroeconomic environment. Further, a low interest rate regime has a direct
relationship with the quality of the banks' loan books, with expectations that non-
performing loans will increase in a regime of high interest rates.
(b) Financial sector development. Cross-country studies show large interest

spreads are associated with low levels of financial sector development. In general,
spreads in East Asia and Pacific are lower than in Sub-Saharan Africa. And within
Sub-Saharan Africa, the most advanced market (South Africa) exhibits small
spread. As the financial sector grows, spreads narrow. The spreads in Low Income
Countries (LICs) averaged 11.4% compared to 7.4% in Middle Income Countries
(MICs) over 1990-2012 (Figure 9). Compared to the 1990s, spreads have also
declined in Kenya.
Figure 9: Spreads in Low-Income and Middle-Income Countries
16
14
12
10
4
90 92 94 96 98 00 02 04 06 08 10 12
LIC MIC
Source: World Bank, World Development Indicator. Missing LIC spreads were extrapolated.
(c) Industry-specific factors especially overhead costs. Kenya banks justify the high
spreads as due to the difficult business environment they operate in (Oloo 2013).
The main argument is that dispute resolutions take too long and is costly; while
national infrastructure services (e.g. electricity) are expensive and unreliable. They
also cite the high cost of attracting, training and maintaining human resources.
Salaries and other forms of labour compensation make up a large part of their

overhead, as the scarcity of skilled financial sector workers leads to high turnover
and compensation packages geared to retain scarce skills (World Bank 2013). Most
banks estimate that salaries make up 50% of their overhead cost despite the fact tact
that Kenya has a fairly well-developed pool of banking skills. Nevertheless, the
largest portion of spreads is explained by profits in recent times (Table 9).
Table 9: Ex post Spread Decomposition in Kenya, %
2009 2010 2011 2012
Profit 41.6 47.6 51.4 47.9
Bad loans provisions 7.9 8.6 3.6 4.3
Overhead costs 44.6 38.1 38.7 40.2
Reserves 5.9 5.7 6.3 7.7
Total 100 100 100 100

Source: World Bank (2013)
As seen in Table 9, overhead costs do play an important role in explaining the

spreads in recent years in Kenya. Overhead costs have actually been going up since
the macroeconomic disruptions in 2011. Given the large share of salaries in the
overhead costs of the banking sector, increasing the supply of skilled labor to this
sector should be a priority (World Bank 2013).
(d) Bank-specific factors: Market structure. Large banks have higher spreads than
medium-size and small banks. The difference can be attributed to differences in the
cost of raising capital. Small and poorly capitalized banks find it more difficult to
raise funds. They have to offer higher deposit rates to attract funds and compensate
for the perception that they are riskier than large, more liquid, better-capitalized
banks, which are perceived to be too big to fail. Consequently, big banks are able
to mobilize more deposits even at relatively low or near zero deposit rates while at
the same time attracting large loan applications despite charging higher rates
(World Bank 2013). In Kenya, the banking sector is characterized by an
oligopolistic structure and market segmentation, in which the largest four banks
control about two-fifths of the market, partly as a result of their reputation and
customer loyalty, hence the need for increased competition and breaking the market
dominance by a few players (Mwega 2011).
(e) Bank specific factors: Lending risk premium. The difference between market
lending rates and short-term T-bill rates (Figure 7) can be interpreted as the risk
premium, and reflect the markets perception of risk. Over and above the actual risk
perception, where information gaps on credit history or market conditions and other
deficiencies in the financial infrastructure persist, banks are likely to price these
deficiencies through a higher risk premium (World Bank 2013).

6 Prudential regulations
in Kenya
In 1988, the Basel Committee issued the Basel I Accord which assesses banks
capital adequacy requirements in the context of the credit risk they face and
advocates risk-based supervision. Basel I therefore emphasized a set of minimum
capital requirements for banks in order to address credit risk. In 2004, the
Committee issued the Basel II Accord which contained further recommendations
on banking laws and regulations. The Committee attempted to accomplish this by
setting up rigorous risk and capital management requirements designed to ensure
that a bank holds capital reserves appropriate to the risk the bank exposes itself to
through its lending and investment practices. The Accord was to be implemented
from 2007 by G10 countries, with more time given to developing countries, as they
were yet to satisfy the prerequisites for the new accord. Basel II has three pillars:
Pillar I on minimum capital requirements; Pillar II on the supervisory review
process; and Pillar III on market discipline. In December 2010, the Committee
announced proposals dubbed Basel III which are currently being reviewed for
regulatory and supervisory suitability to financial systems (Kasekende et al. 2011).
These proposals include the strengthening of capital adequacy and liquidity
requirements as well as countercyclical macroprudential measures.
The CBK continues to regulate banks mainly based on Basel I but was in the
process of formulating a policy position on Basel II implementation (KPMG 2012).
New guidelines that came into force in January 2013 contain some features of Basel
II and Basel III on capital adequacy requirements (Oloo 2013). Overall, Kenya has
endeavoured to implement the Basel accords for ensuring financial stability of the
countrys financial sector. The Kenyan banking system has continued to record
compliance with the minimum capital and liquidity prudential requirements. The
prudential and financial stability indicators have shown that the financial sector is
sound (Figure 10). All the banks have in the recent past met the four minimum
capital requirements with respect to the (i) Minimum core capital of Ksh 250
million which was raised to Ksh 1 billion over 2008-12; (ii) Core Capital/Total
Deposit Liabilities ratio (Minimum 8%); (iii) Core Capital / Total Risk Weighted
Assets ratio (Minimum 8%) and Total Capital/ Total Risk Weighted Assets
(Minimum 12%). In addition, the NPL/Assets ratio has decreased from a high of
22.6% in 2001 to a low of 4.3% in 2007, and of December 2013 averaged 5%, an
indication that the banking systems asset quality has generally improved over time.
As well, the ROA and ROE have generally shown an upward trend since 2002.
Based on the unaudited financial statements for 2012, almost all banks had met the
enhanced minimum core capital requirement of Ksh 1 billion, according to CBK21.
However, the final capital positions of the Kenyan banks will be determined once
21
Interview with CBK Governor in Oloo (2013).

the audited financial statements are submitted at the end of March 2013. This is
however a minimum threshold and several banks already hold capital way above
the minimum of Ksh 1 billion. The key determinant of capital for an institution is
the needs of the market niche it serves.
One theory is that increased capital base is important for financial sector stability
and may lead to cost reduction from economies of scale which may lead to lower
lending rates. On the other hand, a further increase the capital requirement will
only create more concentration, making the banking sector more oligopolistic.
Gudmundsson et al. (2013) conclude that capital regulation improves the
competition, performance and financial stability of Kenyan banks22.
Implementation of the CBKs capital requirements for banks to build their core
capital can therefore be expected to enhance financial sector stability and lead to
cost reduction from economies of scale and ultimately lowering lending rates.
Figure 10: Selected prudential and financial stability indicators

for the banking sector 2011 - 2013
Dec-11 Dec-12 Dec-13 Statutory

Requirement
Core capital to Total Risk 18.0% 18.9% 19.5% 8.0%

Weighted Assets Ratio
Total Capital to Total Risk 21.0% 21.9% 23.2% 12.0%

Weighted Assets Ratio
Core capital/Deposits 15.6% 16.3% 17.3% 8.0%
Liquidity Ratio 37.0% 41.9% 38.6% 20.0%
Gross Non-Performing 4.4% 4.5% 5.0% N/A

loans to Gross Loans Ratio
Return on Assets (ROA) 3.4% 3.8% 3.6% NA
Return on Equity (ROE) 30.3% 34.2% 28.9% NA

CBK has focused more on microprudential regulation which relates to factors that
affect the stability of individual banks and less so on macroprudential regulation
which relates to factors which affect the stability of the financial system as a whole.
In the latter case, changes in the business cycles may influence the performance of
banks, hence the Basel III proposal for countercyclical capital changes to provide
the way forward for future macroprudential regulation, which should take into
account the growth of credit and leverage as well as the mismatch in the maturity of
assets and liabilities. Murinde (2012) however argues that review of
macroprudential regulations should encompass the broader aspects of financial
22
They estimate the Lerner index and the Panzar and Rosse H-statistic as measures of competition and relate them
to core capital. The panel estimates show the log of core capital is positive and significant while squared log of
core capital is negative and significant. This implies that an increase in core capital reduces competition up to a
point and then increases competition so that the benefits of increasing capital requirements on competitiveness are
realized once consolidation in the banking sector takes place. They then use return on equity to capture bank
performance and stability and the estimation results confirm a positive relationship supporting the evidence that
capital regulation improves the performance of banks and financial stability.

services regulation, such as depositor protection or deposit insurance and the safety
of the payments system which have received attention from CBK.
The regulatory toolkit in Kenya has also relied substantially on other variables such
as structure of banking assets and liabilities such as restrictions on banks large loan
concentrations and foreign exchange exposure limits (Kasekende et al. 2011). As
well, according to KPMG (2012), Kenya has a highly skilled workforce and the
banking sector is able to secure banking staff with relevant training, and finance-
related profession certification. In addition, the country has returning citizens with
international professional experience to add to an already diverse talent pool.
Capacity for implementing different regulations and supervision, such as lack of
information and insufficient staff do not seem to be a major constraint. In a group
of 11 SSA countries, Gottschalk (2013) finds Kenya to have the second largest
number of supervisors (60), largest number of supervisors with more than ten years
of experience (30) and the largest percentage of supervisors with a postgraduate
degree (80), although the number of onsite supervisors by banks in the previous
five years was comparatively low at 1.
Among other regulatory issues, Kenya has increasingly moved into universal
banking reflected in increasing share of net commissions and fees in the banks' total
income. The country now has banks that own insurance companies, others have set
up insurance agencies to push forward their concept of bank-assurance; while
others own stock brokerage firms. Hence there have been increased synergies
between the banking, insurance and securities sectors with removal of regulatory
barriers between the different segments of the financial sector. This poses
regulatory challenges as different financial sector entities are subject to different
regulatory regimes. Given the convergence and consolidation of the financial
services, some players have called for the established of an overall services
regulatory authority, as in UK (Mutuku 2008, Presidential Task Force on Parastatal
Reforms in Kenya 2013).
According to the Central Bank, the convergence of financial services is a global

phenomenon, with among its key drivers being the customer demands for a one
stop financial services super markets and competition. This poses regulatory
challenges as different financial sector entities are subject to different regulatory
regimes. The Central Bank has adopted a consolidated supervision approach, which
requires information sharing and coordination amongst the various regulators in the
financial sector. This is consistent with Spratt (2013) who advocates for (i) a
unified approach to supervision, with the central bank playing a dominant role; and
(ii) a comprehensive approach that should utilize the already wider tool-kit
available to regulators.

7 Management of capital
flows in Kenya
7.1 Evolution of current account deficit and net capital inflows in

Kenya
Kenya has in the last decade experienced a large increase in the current account
deficit (Figure 11). The current account recorded an average deficit of 1.75% of
GDP in 2006, generally widening over the subsequent years. By 2012, the deficit
had risen to an average of 10.6% of GDP. The deficit improved in 2013 from a
peak of 11.0% of GDP in January 2013 to 8.5% of GDP in November 2013. The
improvement in current account is attributed to normalisation of the import bill
after the large amount of imports of equipment for infrastructure development and
improvement in net receipts from services. As a result, the proportion of imports of
goods and services financed by exports of goods and services increased to 62.9% in
the first half of 2013 from an average of about 61.5% in the second half of 2012.
Nonetheless, imports of machinery and other equipment continued to account for a
higher proportion of the import bill at about 27.2%. These are essential for
enhancing future productive capacity of the economy.
The high current account deficit would not be a major problem if it was financed by
long-term capital inflows such as ODA and FDI. However the deficit is mainly
financed by short-term net capital inflows, except in a few episodes when net long-
term official flows dominate (Figure 12). Short-term capital flows have typically
accounted for more than 50% of total financial flows. The easy reversibility of
these inflows increases the risk of a sudden stop as a shift in market sentiments
creates a flight away from domestic assets (OConnell et al. 2010).This could lead
to depletion of reserves and sharp currency depreciations. While increased capital
inflows are accompanied by a possible resurgence of growth and a marked
accumulation of foreign exchange reserves, they have been accompanied by
inflationary pressures, a real exchange rate appreciation and deterioration in the
current account deficit (Maasa 2013). In Kenya net capital inflows depreciate the
real exchange rate in the short-run and long-run (Mwega 2013).
The CBK has not in the past collected information on foreign participation in the
bonds market. However a Banking Circular No. 4 of 2013 was sent to all
commercial banks on December 17, 2013, asking them to be providing monthly
information on foreign investments in government securities. Table 10, on the other
hand, shows the net foreign purchases in Kenyas NSE as percentage of equity
turnover over January 2009-December 2013. Net purchases averaged 14.7% of
equity turnover and were negative in only a few months: January 2009 (-13%),
May 2010 (-3%), April June 2011 (-23% to -40%), December 2011 (-23%),
February 2013 (-27%) and December 2013 (-6%).
Figure 11: 12-months cumulative current account deficit as % of

GDP, December 2005-November 2013

0
-2
-4
-6
-8
-10
-12
2006 2007 2008 2009 2010 2011 2012 2013
Figure 12: Net capital flows to Kenya, US$ million, December

2005-November 2013
1,000
800
600
400
200
-200
2006 2007 2008 2009 2010 2011 2012 2013
NET_SHORT_TERM
NET_LONG_TERM_OFFICIAL
NET_LONG_TERM_PRIVATE
Table 10: Net Foreign Purchases as % Share of Equity Turnover

in Kenya, January 2009-December 2013
60
40
20
-20
-40
-60
2009 2010 2011 2012 2013

7.2 ODA Flows
The other sources of finance are ODA and FDI23. Mwega (2010) analyses the
evolution of foreign aid to Kenya. Kenya is not a high aid-dependent economy. At
its peak in 1989-90, net ODA inflows averaged 14.6% of the gross domestic
income, declining to a low of 2.44% in 1999. There were thereafter increased net
aid inflows which rose from 3.0% of GNI in 2002 to 7.4% of GNI in 2011 (Table
11). This was as a result of government increased borrowing to finance
development projects on infrastructure as well as increased inflows of grants to
support the government efforts in social sectors and humanitarian responses to
droughts. The increase in foreign aid therefore reflected renewed donor confidence
in the government resolve for proper management of the economy and situating
adequate government measures against graft and corruption.
Table 11: Net ODA to Kenya, 2002-2011

Indicator Name 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
Net ODA (% of GNI) 3.0 3.5 4.1 4.1 4.2 4.9 4.5 5.8 5.1 7.4
Net ODA (% of central government expense) 15.7 18.6 19.7 22.3 21.3 25.0 21.0 27.8 22.6 32.3
Net ODA (% of gross capital formation) 19.7 21.3 24.2 23.0 22.8 25.5 23.3 29.1 25.6 35.3
Net ODA per capita (current US$) 11.9 15.4 19.0 21.2 25.8 35.1 35.2 44.6 39.8 59.1
One reaction to aid volatility has been reluctance by the government to factor in
programme aid in the budget. The government has in the recent past excluded
donor budgetary support from its annual budget strategy and beefed measures for
local resource mobilization. Consequently, the country has substantially reduced
aid-dependence, with government revenues having increased dramatically after the
December 2002 elections. In the last two decades, tax revenues have increased
both as a proportion of GDP and absolutely in US dollars terms, with acceleration
since 2002. Tax revenue as a share of GDP increased from 17.3% in 2002 to 19.9%
in 2011. In absolute terms, tax revenues almost tripled from US$ 2.27 billion in
2002 to US$ 6.69 billion in 2011.
While there have been concerns about public debt in the country, various indicators
(Table 12) shows it is sustainable in the medium-term. The table shows the country
is on the threshold with respect to the PV of the public sector debt to GDP ratio
(40%) which increases from 39.3% in 2011 to 40.3% in 2012. However, it
gradually decreases to 38.7% by 2014, and to about 25% by 2030. Given Kenyas
historically strong revenue performance, the country remains well within the other
two indicators.
Table 12: Public Debt Sustainability in Kenya
Indicator 2010 2011 2012 2013 2014 2015 2020 2030

PV of public 38.5 39.3 40.3 39.9 38.7 37.9 34.70 25.6
sector debt
to GDP ratio
(40)
PV of public 156.5 154.2 156.1 151.5 145.6 147.8 140.4 106.1
sector debt
23
Remittances are already incorporated in the measurement of the current account deficit.

to revenue
ratio (250)
Debt service 25.5 21.9 24.5 23.5 21.6 21.5 20.0 15.5
to revenue
ratio (30)
Source: World Bank IMF (2011)
7.3 FDI Flows
FDI has played a small (but increasing important) role in the Kenyan economy. Net
FDI flows to Kenya have not only been highly volatile, they generally declined in
the 1980s and 1990s despite the economic reforms that took place and the progress
made in improving the business environment (Mwega and Ngugi, 2004). The
investment wave of the 1980s dwindles in the 1990s as the institutions that had
protected both the economy and body politic from arbitrary interventions were
eroded (Phillips et al. 2001). The performance of FDI has improved since the
1990s and averaged US$159.4 million in 2002-07. Net FDI increased to an average
of 0.68% of GDP in this period. The data however show that the good performance
was driven by a big jump of net FDI flows to the country in 2007. The jump was
due to new investments by mobile phone companies (involving mergers and
acquisitions of $3 million) and accelerated offshore borrowing by private
companies to finance electricity generation activities, which became necessary due
to a drought that prevailed that year. FDI inflows averaged 0.3-0.98% of GDP in
the country over 2008-2011. FDI inflows substantially declined in 2008 but
improved over 2009-11. FDI inflows increased from US$95.6 million in 2008 to
US$335.2 million in 2011. World Bank (2013) reports that Kenya received about
US$187.6 million in the year to June 2013, far below flows to Tanzania (US$
1,512.3 million) and Uganda (US$ 1,817.1 million), mainly to their gas and oil
industries24. The report urges the country to improve its business climate to attract
more FDI and promote economic growth. Esso (2010) for example finds a long-run
relationship between FDI and growth in Kenya, with a one-way causality from the
former to the latter. FDI is expected to scale up following the discovery of
commercially viable oil deposits and rare minerals in the country.
Table 13: Net FDI inflows to Kenya, 2002-2011
Indicator Name 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
FDI, net inflows (% of GDP) 0.21 0.55 0.29 0.11 0.23 2.68 0.31 0.38 0.55 0.98
FDI, net inflows, US$ million 27.6 81.7 46.1 21.2 50.7 729.0 95.6 116.3 178.1 335.2
In an empirical study, Mwega and Ngugi (2007) found the FDI ratio is mainly
determined by a few fundamentals (in this case, the trading partners growth rate,
terms of trade shocks; the external debt ratio and the quality of institutions). With
the first two variables exogenous, the result suggests that investment promotion in
Kenya requires actions such as reducing corruption (for example, changing
government away from corrupt awards to insiders); rebuilding institutions; and
enhancing the rule of law and order, with clear and transparent regulations,
uniformly enforced (Phillips et al. 2001). Reducing the external debt overhang
would also have a positive effect on FDI.
24
At an average exchange rate of Ksh 85.3 per dollar in the year to June 2013.

7.4 Capital account regulation to avoid future currency or
banking crises
Management of the short-term capital flows in Kenya could be enhanced by some

non-radical interventions such as building reserves (for example to the six months
cover initially recommended by the East African Community) to guard against
reversals. Some countries have implemented more radical policies such as the
Tobin tax, asking such flows be in the country for a certain minimum period or
revert to a crawling peg regime that would contain and lead to better management
of both short-term capital flows and the exchange rate. According to OConnell et
al. (2010), the CBK is not yet in a trilemma which postulates that a country that
operates an open capital account cannot peg the exchange rate and have an
independent monetary policy at the same time. Given a combination of imperfect
asset substitutability, prudential regulations and residual capital controls, CBK has
scope to target inflation while also exerting some influence over the path of the
nominal exchange rate in the short-run and perhaps for extended periods.
Besides monetary policy actions to neutralize the effects of the net capital on
domestic liquidity, the CBK therefore mainly relies mainly on foreign exchange
reserves to enhance the countrys capacity to absorb shocks that impact the foreign
exchange market. The statutory requirement is that the CBK endeavour to maintain
foreign reserves equivalent to four months import cover. The CBK does not
participate in the foreign exchange market to defend a particular value of the Kenya
shilling but may intervene to stabilize excess volatility in the exchange market.
Following the volatility in the exchange rate in 2011, the CBK introduced various
regulatory measures, through Prudential Guidelines of banks, to support the
stability of the exchange rate. These included:
Limiting the tenor of swaps and Kenya Shilling borrowing where

offshore banks are involved to a tenor of not less than one year.
Limiting the tenor of swaps between residents to not less than seven
days.
Reduction of the foreign exchange exposure ratio of core capital from
20% to 10%.
Requiring that local banks obtain supporting documents for all
transactions in the Nostro accounts of offshore banks.
Suspension of the use of any Electronic Brokerage System by banks.
There are no explicit measures to regulate currency mismatches in lending to banks

and companies, except indirectly through foreign currency exposure limits. As seen
in Figure 13, while foreign currency advances and deposits have increased over
time, their ratio has been fairly stable over 2007-2013. Neither are there counter-
cyclical capital controls on inflows of short term capital flows to the country.

Figure 13: Foreign Currency advances and deposits in Kenya,
January 2007 December 2013
400
360
320
280
240
200
160
120
80
40
2007 2008 2009 2010 2011 2012 2013
FORE IGN CURRE NCY A DV A NCE S , K S H B ILLION

FORE IGN CURRE NCY DE P OS ITS , K S H B ILLION
% S HA RE OF FORE IGN CURRE NCY A DV A NCE S TO DE P OS ITS

8 Summary and
conclusions
This case study investigates the potential tradeoff between regulation and stability
of Kenyas financial sector, with a focus on the banking sector. The Terms of
Reference for the research project identify six issues below that require
investigation.
Section 2 is devoted to the size and growth of the financial sector. The paper first
analyses of the features and vision of development of the country as articulated in
Kenya Vision 2030 and the Medium Term Plans (MTPs). The Vision identifies
financial services as one of seven sectors that are the key drivers of the economy. It
envisages the creation of a vibrant and globally competitive financial sector that
will create jobs and promote high levels of savings to finance Kenyas overall
investment needs.
Kenyas M2/GDP and private credit/ GDP ratios closely track those of low-income
countries (LICs), but they are far below those of middle-income countries (MICs),
with a clear divergence over time. With the country aspiring to MIC status by 2030,
it apparently has a long way to go in building its financial sector. Granger causality
tests show significant causality from financial intermediation to growth at 3 and 4
lags at the 5% level, with the other lags non-significant, supporting Kenya Vision
2030 designation of the financial sector as one of the drivers of growth in Kenya, at
least in the short-run. On an annual basis, the financial sector growth has
consistently outpaced the real GDP growth since 2009.
Section 3 discusses the role of the foreign, state-owned commercial banks and DFIs
in the country. Kenya currently (in December 2013) has 43 banks, of which14
banks have foreign ownership, accounting for 32.2% of net assets in 2012. The
Central Bank also identifies 6 banks with state ownership accounting for 24.8.2%
of net assets in 2012, with the government having majority ownership in three of
these, which account for 4.2% of net total assets (Consolidated Bank; Development
Bank of Kenya; and the National Bank of Kenya). The remaining 23 are local
private banks, accounting for 43.0% of the banking sectors net assets. Kenyas
banking system is therefore dominated by local private banks and foreign banks.
The foreign banks have done as well as local private banks with both having an
average rate of return on assets of 4.6% over 2009-2012, ahead of banks with state
ownership (3.7%) and state-owned banks (3.1%). The poor performance of the
latter is attributed to poor legacy in the past of poor governance and massive
interference by the state in their management. The same pattern is repeated in the
other indicators. Foreign banks have on average done slightly better on the rate of
return on core capital (46.3%) over 2009-2012 when compared to local private
banks (44.6%), ahead of banks with state ownership (34.1% and 24.6%,
respectively). They also have the lowest cost of funds (index of 3.2%), followed by
banks with state ownership (index of 3.1% and 4.5%, respectively) and then local
private banks (index 4.6%). Foreign banks are also the most efficient (with an

average score of 49.1%) slightly ahead of local private banks (score of 53.5%),
with banks with state ownership the least efficient (scores of 60.4% and 65.1%,
respectively). Finally, foreign banks have the least non-performing loans ratio
(average 3.3% over 2009-2012), followed by local private banks (4.7%) and banks
with state ownership (6.4% and 8.0%, respectively). It is therefore apparent that
foreign banks largely behave and perform like local private banks, except that they
have cheaper sources of finance due to their reputation capital. They are also quite
diverse so that it is difficult to generalize their behaviour.
According to World Bank (2013), most foreign banks have dedicated units serving
SMEs. There are however a few exceptions such as Citibank and, to a less extent,
Standard that focus on corporate and high-end clients, and hence do not lend to
SMEs. According to simulations from Oloo (2013) data, local private banks charge
the lowest costs to SMEs, followed by foreign banks and then banks with state
ownership.
In Kenya, some banks have expanded their branch networks in the region. Such
banks pose an increasing challenge for regulators across Africa (Beck 2013. Central
banks in Eastern African countries have signed a Memorandum of Understanding
(MOU) to facilitate information sharing and supervisory co-operation for regional
banking groups. The CBK has developed and implemented a consolidated
supervision program for the effective oversight of banking groups. As part of
efforts aimed at implementing consolidated supervision, it launched Prudential
Guidelines on Consolidated Supervision and convened two Supervisory College
meetings in 2012 and 2013 bringing together all Central Banks of the East African
countries where Kenyan banks currently have operations. The East African Central
Banks are also currently working to harmonize their banking sector supervisory
rules and practices as a prerequisite for the envisaged East African Monetary Union
(EAMU). One issue that appear critical in this increasing regulatory cooperation,
based on the experience of European countries, is that there should be a focus on
proper preparation for resolution. Non-binding MOUs and Colleges of Supervisors
limited to information exchange are of limited use in times of bank failure.
In Kenya, DFIs play a small role in the economy. The five existing DFIs account
for less that 1% of the assets of the banking sector and supplied only about 0.56%
of the banking sector credit to the private sector. There however seems to be
consensus that DFIs could play a significant role by providing long-term finance
through targeted interventions for specific sectors or groups like SMEs, youth and
women (CBK 2013). This is recognized under Vision 2030, where DFIs are
expected to contribute towards enhanced financial access and investment goals. The
Task Force on Parastatals Reform (2013) advocates consolidating DFIs under a
Kenya Development Bank (KDB) with sufficient scale, scope and resources to
place a catalytic role in Kenyas economic development by providing long-term
finance and other financial and advisory, investment and advisory services. CBK
(2013) as well calls for introduction of prudential regulation and supervision
consistent with their mandate as done in several countries including Tanzania,
Nigeria, China, Swaziland and Korea. As a result, Kenya would only customize the
regulatory and supervisory frameworks to local circumstances.
Section 4 discusses financial inclusion in Kenya. Financial access surveys show

that Kenyas financial inclusion landscape has undergone considerable change. The
proportion of the adult population using different forms of formal financial services
has increased from 27.4% in 2006, to 41.3% in 2009 and stood at 66.7% in 2013,
amongst the highest in Africa. Overall, the proportion of the adult population
totally excluded from financial services has declined from 39.3% in 2006 to 31.4%
in 2009 and to 25.4% in 2013.

The massive increase in access to financial services in the country since 2006 is
mainly due to enhanced usage of mobile money services from virtually 0% in 2006
to 28.4% in 2009 to 61.6% in 2013, making Kenya a global leader in the use of
mobile phone platforms. Currently, the four mobile money services have close to
20 million customers, handling over US$ 54.4 million worth of transactions per
day. M-PESA however remains dominant with 82% of market share, Airtel Money
15%, YuCash 2% and Orange Money 1%.
Financial inclusion has varied with the socio-economic statues of the population.
According to FSDK (2013), financial exclusion in 2013 varied from 55.3% for the
poorest 20% of the population to 5.7% for the wealthiest 20% of the population. As
well, financial exclusion was highest for those without any education (60.7%) and
lowest for those with tertiary education (1.8%). Women use of formal financial
services has lagged behind that of men, but the gap substantially reduced between
2009 and 2013. As well, rural areas have lagged behind urban areas in access to
financial services
The success of M-PESA in Kenya is often used to argue for a light-touch approach,
where mobile banking was allowed to flourish (Spratt 2013). However, possible
systemic and individual users risks seem to require careful evaluation and
monitoring. The CBK acknowledges that the technology used to deliver the mobile
money services carries inherent threats, the main ones being operational risk,
financial fraud and money laundering. However, prior to the launch of mobile
banking services by the various companies, the CBK requires them to provide a
detailed risk assessment, outlining all potential risks and satisfactory mitigating
measures they have put in place. Precautionary measures have been put in place to
ensure that the services do not infringe upon the banking services regulatory
framework as provided for in the Banking Act. Following the enactment of the
National Payments System Act in 2011, the CBK now has the oversight mandate,
with all payment service providers including mobile phone service providers
offering money transfer services falling under the CBKs regulatory framework.
Increased financial inclusion through financial innovations does not seem to have
compromised financial stability. First, the stock of e-money is backed 100% by
accounts held at commercial banks. The mobile money e-float is also a small
proportion of the other monetary aggregates in terms of size for it to matter much
for monetary policy. Weil et al. (2011) estimate the outstanding stock of M-PESA
e-float at 1.6% of M0 and 0.4% of M1. Second, while there has been increased
instability in monetary relationships post-2007, reflected in a decline in the income
velocity of circulation and an increase in the money multiplier, undermining the
conduct of monetary policy which assumes stable monetary relationships, stability
seems to have been re-established since 2010. The instability was therefore a
temporary phenomenon. The demand for money also shows stability post-2010
(Weil et al. 2011).
Section 5 is devoted to access and cost of credit in Kenya. Financial sector reforms
have undoubtedly strengthened Kenyas banking sector in the last decade or so, in
terms of product offerings and service quality, stability and profitability (Kamau
2009). The World Bank (2013) devotes itself to an analysis of banks lending to
SMEs in Kenya. The report notes that although retail banking has improved
markedly in Kenya in the last decade, access to credit for SMEs is still limited.
Most of the surveyed SMEs cite the high cost of credit as the reason for cash flow
challenges they face, leaving them with no recourse but to dig deeper into their
personal savings or turn to family friends to raise funds for day to day operations.
The report notes there is some evidence that Kenyan banks are actually ahead of
their counterparts in Nigeria and South Africa in lending to SMEs. From field

surveys, about 17.4% of total bank lending goes to SMEs in Kenya, compared to
only 5% in Nigeria, and 8% in South Africa. According to a survey reported in the
World Bank (2013), involvement of Kenyan banks in the SME segment is growing,
both in terms of size and the diversity of their approaches to the SME client
relationship, with the encouragement of donors who provide bank-specific lines of
credit and partial credit guarantees.. This has been driven by innovations
specifically targeting this market. According to this survey, Kenyan banks tend to
provide more working capital than investment loans.
On policy, the report recommends that tapping the full growth and job-creating
potential of the SME sector will entail a move towards providing growth capital
and not just working capital. Technical assistance could help bridge the distance
between the demand for and the supply of private equity while improving the
listability of SMEs on the special Growth Enterprise Market Segment (GEMS)
could increase their access to equity finance.
One of the key criticisms of the Kenyan banking sector is that the cost of credit and
the interest rate spread remains high (at an average of 10.02% over 2005-13). The
spreads are on average relatively higher in Kenya than in, for example, Malaysia,
Botswana, South Africa, Nigeria and Tanzania, but lower than in Uganda.
Alongside high lending interest rates and wide spreads, the banking sector profits
have increased over time. Profits before tax increased from about US$ 70 million in
2002 to US$ 1,256 million in 2012, an average growth rate of 38.7%, with income
from interest on loans and advances accounting for 49.6% of total income during
the period. The persistently high spreads and growing profitability of the industry
have left it open to repeated criticisms of collusive price-setting behaviour,
particularly for large banks (World Bank 2013, Oloo 2013). The Competition
Commission has launched an investigation into possible collusion price-setting
behaviour by commercial banks, while the National Treasury has set up a 15-
member committee to probe these spreads.
There have been several studies of interest rate spreads in Kenya (Abdul et al.
2013, Were and Wambua 2013, World Bank 2013), which postulate that interest
rate spreads reflect (i) macroeconomic factors; (ii) the state of financial sector
development; (iii) industry-specific factors; and (iv) bank-specific factors which
are discussed in the paper.
Kenya banks justify the high spreads as due to the difficult business environment
they operate in (Oloo 2013). The main argument is that dispute resolutions take too
long and are costly; while national infrastructure services (e.g. electricity) are
expensive and unreliable. They also cite the high cost of attracting, training and
maintaining human resources. Salaries and other forms of labour compensation
make up a large part of their overhead, as the scarcity of skilled financial sector
workers leads to high turnover and compensation packages geared to retain scarce
skills (World Bank 2013). Most banks estimate that salaries make up 50% of their
overhead cost despite the fact tact that Kenya has a fairly well-developed pool of
banking skills. Given the large share of salaries in the overhead costs of the banking
sector, increasing the supply of skilled labor to this sector should be a priority.
Nevertheless, the largest portion of spreads is explained by profits in recent times
(World Bank 2013).
Section 6 discusses prudential regulations in Kenya. The CBK continues to

regulate banks based mainly on Basel I but was in the process of formulating a
policy position on Basel II implementation (KPMG 2012). New guidelines that
came into force in January 2013 however contain some features of Basel II and
Basel III on capital adequacy requirements (Oloo 2013). Overall, Kenya has

endeavoured to implement the Basel accords for ensuring financial stability of the
countrys financial sector. The Kenyan banking system has continued to record
compliance with the minimum capital and liquidity prudential requirements. All
the banks have in the recent past met the four minimum capital requirements with
respect to the (i) Minimum core capital of Ksh 250 million which was raised to Ksh
1 billion over 2008-12; (ii) Core Capital/Total Deposit Liabilities ratio (Minimum
8%); (iii) Core Capital / Total Risk Weighted Assets ratio (Minimum 8%) and
Total Capital/ Total Risk Weighted Assets (Minimum 12%). In addition, the
NPL/Assets ratio has decreased from a high of 22.6% in 2001 to a low of 4.3% in
2007, and of December 2013 averaged 5%, an indication that the banking systems
asset quality has generally improved over time. As well, the ROA and ROE have
generally shown an upward trend since 2002.
CBK has focused more on microprudential regulation which relates to factors that
affect the stability of individual banks and less so on macroprudential regulation
which relates to factors which affect the stability of the financial system as a whole.
Basel III therefore proposes for countercyclical capital changes to provide the way
forward for future macroprudential regulation, which should take into account the
growth of credit and leverage as well as the mismatch in the maturity of assets and
liabilities (Murinde 2012).
The regulatory toolkit in Kenya has also relied substantially on other variables such
as structure of banking assets and liabilities such as restrictions on banks large loan
concentrations and foreign exchange exposure limits (Kasekende et al. 2011). As
well, according to KPMG (2012), Kenya has a highly skilled workforce and the
banking sector is able to secure banking staff with relevant training, and finance-
related profession certification. In addition, the country has returning citizens with
international professional experience to add to an already diverse talent pool. In a
group of 11 SSA countries, Gottschalk (2013) finds Kenya to have the second
largest number of supervisors (60), largest number of supervisors with more than
ten years of experience (30); and the largest percentage of supervisors with a
postgraduate degree (80), although the number of onsite supervisors by banks in the
previous five years was comparatively low at 1.
Finally, Section 7 discusses the management of capital flows in Kenya .Kenya has
in the last decade experienced a large increase in the current account deficit. The
current account recorded an average deficit of 1.75% of GDP in 2006, generally
widening over the subsequent years. By 2012, the deficit had risen to an average of
10.6% of GDP. The deficit improved in 2013 from a peak of 11.0% of GDP in
January 2013 to 8.5% of GDP in November 2013. The high current account deficit
has mainly been financed by short-term net capital inflows, which have typically
accounted for more than 50% of total financial flows. The easy reversibility of
these inflows increases the risk of a sudden stop as a shift in market sentiments
creates a flight away from domestic assets (OConnell et al. 2010).This could lead
to depletion of reserves and sharp currency depreciations.
The CBK has not in the past collected information on foreign participation in the
bonds market. On the other hand, net purchases by foreigner in Kenyas NSE
averaged 14.7% of equity turnover over 2005-2013 and were negative in only a few
episodes: January 2009 (-13%), May 2010 (-3%), April June 2011 (-23% to -
40%), December 2011 (-23%), February 2013 (-27%) and December 2013 (-6%).
The other sources of finance are ODA and FDI which have only played a limited
role, given they are relatively small and highly volatile. The World Bank urges the
country to improve its business climate to attract more FDI and promote economic
growth. Esso (2010) for example finds a long-run relationship between FDI and

growth in Kenya, with a one-way causality from the former to the latter. FDI is
expected to scale up following the discovery of commercially viable oil deposits
and rare minerals in the country. In an empirical study, Mwega and Ngugi (2007)
found the FDI ratio is mainly determined by a few fundamentals (in this case, the
trading partners growth rate, terms of trade shocks; the external debt ratio and the
quality of institutions). The result suggests that FDI promotion in Kenya requires
actions such as reducing corruption; rebuilding institutions; and enhancing the rule
of law and order, with clear and transparent regulations, uniformly enforced
(Phillips et al. 2001). Reducing the external debt overhang would also have a
positive effect on FDI.
While there have been concerns about public debt in the country, various indicators
shows it is sustainable in the medium-term. The country is on the threshold with
respect to the PV of the public sector debt to GDP ratio (40%) which increases
from 39.3% in 2011 to 40.3% in 2012. However, it gradually decreases to 38.7%
by 2014, and to about 25% by 2030. Given Kenyas historically strong revenue
performance, the country remains well within the other two indicators (World Bank
IMF 2011).
Management of the short-term capital flows in Kenya could be enhanced by some
non-radical interventions such as building reserves to guard against reversals. Some
countries have implemented more radical policies such as the Tobin tax, asking
such flows be in the country for a certain minimum period or revert to a crawling
peg regime that would contain and lead to better management of both short-term
capital flows and the exchange rate. According to OConnell et al. (2010), the CBK
is not yet in a trilemma which postulates that a country that operates an open capital
account cannot peg the exchange rate and have an independent monetary policy at
the same time. Given a combination of imperfect asset substitutability, prudential
regulations and residual capital controls, CBK has scope to target inflation while
also exerting some influence over the path of the nominal exchange rate in the
short-run and perhaps for extended periods.
There are no explicit measures to regulate currency mismatches in lending to banks

and companies, except indirectly through foreign currency exposure limits. While
foreign currency advances and deposits have increased over time, their ratio has
been fairly stable over 2007-2013. Neither are there counter-cyclical capital
controls on inflows of short term capital This case study investigates the potential
tradeoff between regulation and stability of Kenyas financial sector, with a focus
on the banking sector.

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International Journal of Social Science Studies
Vol. 3, No. 5; September 2015
ISSN 2324-8033 E-ISSN 2324-8041
Published by Redfame Publishing
URL: http://ijsss.redfame.com
The Regulatory and Supervision Framework of Microfinance in Kenya

Abd Elrahman Elzahi Saaid Ali1
1
Islamic Research and Training Institute, Saudi Arabia
Correspondence: Abd Elrahman Elzahi Saaid Ali, Islamic Research and Training Institute, Saudi Arabia.
Received: June 11, 2015 Accepted: June 25, 2015 Available online: August 4, 2015
doi:10.11114/ijsss.v3i5.1004 URL: http://dx.doi.org/10.11114/ijsss.v3i5.1004
Abstract
Microfinance is one of the essential branches of lending that is used to mitigate the negative impact of the increasing
incidence of poverty and unemployment in Kenya. This highlights the important need for an effective regulatory and
supervisory framework for Microfinance Institutions (MFIs) in this country. This research attempts to investigate the
performance of the Kenyan microfinance regulatory and supervisory framework through extracting and analyzing
secondary data sources. Kenya has not unified the regulatory and supervisory framework for the microfinance sector
based on the results of the logical descriptive analysis. The involvement of different bodies, which are include
associations, clubs and churches, in regulation might have weakened the effectiveness of outreach and represents more
challenges for the microfinance sector in Kenya. However, these results have strong implications for the regulators and
the governments when they tried to regulate MFIs.
Keywords: Microfinance Regulatory System, poverty alleviation, Kenyan Microfinance
JEL Classification: G21, G23, G28
1. Introduction:
Like in other African countries, Kenyas association with weakness in infrastructure, security, land tenure, education,
employment, and drought management strategies, has led to severe poverty particularly in the northern part of the
country. The previous report showed that 50% of the Kenyan population are poor and hence has no access to formal
banking. Based on the Financial Sector Deepening Trust (FSD) 1, Kenyan banks serve no more than 4 million people,
leaving the rest of the economically active population to depend on risky and expensive informal and semi-formal
sources of finance. These sources of finance are not subject to the prudential regulations that apply to banks and other
formal-sector institutions. The challenge is that informal and less regulated funds are highly expensive and sometimes
beyond the capacity of the active poor. Because of these, the informal lenders themselves leverage and mobilize
expensive capital from external resources.
The high level of poverty and the growing awareness of the role of microfinance drew the attention of the Kenyan
Government to the importance of microfinance in alleviating poverty. Microfinance is the money loaned to low-income
people or the economically active poor and small-scale enterprises that lack access to funds through the formal lenders.
The Central Bank of Kenya (CBK) defines a microfinance institution (MFI) as an institution that offers financial
services such as credit, savings, insurance, and money transfer services to the poor, low-income households, and Small
and Medium Enterprises (SMEs) that do not qualify for, and therefore lack access to traditional formal financial
institutions.
CBK broadly divides the microfinance institutions into deposit-taking and non-deposit-taking microfinance institutions.
The deposit-taking microfinance institutions (DTMs) are licensed and regulated by the CBK and are permitted to
mobilize and intermediate (or lend) deposits from the public. However, unlike commercial banks, DTMs can only
engage in a limited range of products. They are not allowed to invest in enterprise capital; undertake wholesale or retail
trade; underwrite place of securities; and purchase. On the other hand, non-deposit-taking microfinance institutions
are regulated by the Ministry of Finance, and are not allowed to mobilize public funds. Thus, they can only lend their
own funds or borrowed funds.
Both categories of MFIs support the economic activities of the youth, the marginalized and the poor, and SMEs
1
http://www.fsdkenya.org/
The researcher appreciates the efforts of Wahida Mohamed, the research assistant who helped in data collection
123
International Journal of Social Science Studies Vol. 3, No. 5; 2015
contribute immensely towards poverty alleviation. Therefore, the sound development of a conducive regulatory and
supervisory environment in Kenya should take into account the different categories of MFIs. In addition, facilitating
their rapid growth is vitally important. Hence, this study attempt to investigate the effectiveness of Kenya current
microfinance regulatory framework and suggest some modification for more improving if found ineffective.
2. The Financial System Development of Microfinance Sector in Kenya
The earliest forms of microfinance and microcredit in Kenya were church-based lending programs that arose in the
1980s. Most were confined to specific church parishes that started with local financing for members before they
developed into institutions that could cover a wider number of people in the rural and suburban areas of Kenya. While
these church-based lending programs served the primary function of providing credit to the members of their
congregations, they were often very small and their operations are limited to specific geographic locations but with
limited reach and financial resources. However, they still served the function of providing limited credit facilities to
their members for use in specific purposes.
However, in many cases, these organizations were overwhelmed by the demand for credit by their membership. From
the beginning, nongovernmental organizations (NGOs) began to fill this gap by extending the credit services more
widely. Due to this, in the 1990s, the NGOs developed functioning systems to facilitate the administration of the credit
delivery. The programs were funded and were not necessarily considered as outright business ventures in spite of the
success that most of the schemes achieved.
As the successes of the microcredit institutions grew, they received considerable funding and began to turn into full
commercial entities. This development was also supported by the increased competence in administration, credit
assessment, and the organization of individuals into groups to facilitate the collective guarantee of loans by individual
members. Thus, as the microfinance industry in Kenya grew, the institutions assumed various formal structures and
were registered under different statutes.
In the 1990s, many microfinance institutions moved away from serving closed groups into more formalized institutions.
This institutionalization required that the microfinance and micro-credit institutions should also move away from being
subsidized institutions into more of commercial entities. Evidence of the growth and increasingly significant role played
by the micro-credit and microfinance institutions is seen in the development of the K-Rep Bank. The K-Rep Bank is the
first of the microfinance institutions in Kenya to develop into a full commercial banking enterprise. In order to conduct
its business as a banking institution, the K-Rep Bank was registered under the Central Bank of Kenya Act (Cap 488)i.
The Kenyan banking sector has experienced a continued growth trajectory. It is developing and deepening faster than
the overall economy. It grew by 9% in 2010 and 7.8% in 2011, while the economy grew by 5.8% and 4.4% in 2010 and
2011ii, respectively. This development within the financial sector is strongly guided by the medium-term objectives of
the financial sector reform and development strategy embedded in the economic development blueprint, Vision 2030,
which covers the period of 2008-2030. The 2030 vision for financial services is to create a vibrant and competitive
financial sector that will create jobs and promote a high level of savings to finance Kenyas overall financial needs. It
provides for the introduction of both legal and institutional reforms in the sector that will enhance transparency in all
transactions, build trust, and make the enforcement of justice more efficient.
Therefore, Kenya is one of the first African countries that discovered the importance of microfinance as one of the
essential tools for poverty eradication. The country exert more efforts to develop and promote microfinance business in
its territory. Microfinance business in Kenya is usually carried out through different institutional forms. These
institutions are formal, semi-formal, and non-formal microfinance providers. The formal institutions cover the
commercial banks, non-bank financial institutions, microfinance companies, etc. Others are semi-formal such as
co-operative societies, trusts, NGOs, and state corporations (such as the Uwezo Fund and Womens Enterprise Fund). In
addition, there are other in-formal financial institutions, such as Rating Savings and Credit Association (ROSCAs), and
Accumulating Saving and Credit Associations (ASCAs). The ROSCAs, ASCAs, and moneylenders are user-owned, and
they are managed to offer products tailored towards the needs of their different communities (Figure 1).
124
Figure 1.Kenyas Financial Sector Landscape

Recently, the total asset of the Microfinance Institutions (MFIs) in Kenya has increased steadily compared to the
previous years. The growth was at an average of 30.4% and are worth over KES 220bn (USD 2.59bn) as of December
2011, up from KES 129bn (USD 1.71bn) as of December 2009 2.Equity bank represents the main contributor to this
growth. It represents 80.4% of the total asset in the sector.
Despite this growth, Kenyan microfinance sector is still weak compared to the size of its clients. Recent reports showed
that if commercial banks are excluded, the Kenya microfinance sector is less strong, and relatively stagnant. In 2011,
DTMs recorded a negative growth despite the fact that there was an increase in the number of granted DTM licenses.
However, the number of borrowers in this sector reached nearly 1.5 million with the value of the outstanding loan
book standing at KES 138.4bn as of December 2011 (USD 1.6 bn), which represented positive growth trends. Total
liabilities amount to KES 178.4bn (USD 2.2bn) as of December 2011 which showed steady growth trends of 40% in
2011compared to 27.6% in 2010. However, the sector largely funds itself with deposits collected from the public, which
account for 58.9% of total assets. In addition, total equity accounts for 18.2% of total assets, followed by borrowings
accounting for 16.6%. Thus, the compulsory savings on the other hand, accounts only for 4.16% of the funding
structure.
Figure 2. Liabilities and Equities of Kenyan MFIs

The report on Kenyan financial inclusion shows an increase in formal prudential. Figure 3 showed that formal financial
inclusion grew 10.6% between 2009 and 2013 compared to a 7.1% growth between 2006 and 2009. Thus, the growth
of financial inclusion in Kenya has been reflected positively by the decrease in the proportion of people excluded for the
same period. As indicated in Figure 3, the number of people excluded decreased gradually to 6% between 2009 and
2013. This was a little less than the decrease between 2006 and 2009, which was recorded as 7.9%.
The period between 2006 and 2009 also showed that the formal financial inclusion outperformed the informal
financial inclusion. Hence, the proportion of people relying solely on informal types of financial services has been
steadily decreasing from 33.3 in 2006 to 7.8 in 2013 as shown in figure 3. Likewise, the formal registered financial
2
AMFI Kenyas 2012 annual report on
125
inclusion also showed negative increase. The statistical status of the inclusion for the period between 2006 and 2009
clearly reflects the great efforts exerted by the Kenyan government in regulating the promotion of financial inclusion
tools across the society, particularly the formal prudential inclusion.
Figure 3. Access Strands by Year (%)(Source FinAccess 2013 Report)

3. Micro-finance Regulatory and Supervision Overview
Current literature and actual practice show that the government and donor funds collectively could only supply a small
fraction of global microfinance demand. Hence, financial intermediation by self-sufficient institutions is the only way
that financial services can be supplied to lower-income people worldwide (Marguerite S. Robinson, 2001). Despite the
importance of microfinance as a means of poverty alleviation and a labor-intensive sector, their providers face even the
challenges of survival. The previous study argued that only the microfinance provider can cover its costs, continue its
operations in a sustainable way, and generate benefits to its clients (H.Schmidt and Zeitinger, 2003). In order to promote
microfinance effectively and maintain its sustainability, there must be a suitable regulatory system in place. The
literature showed that microfinance institutions must be able to enter the arena of a licensed and prudentially supervised
financial intermediation, while at the same time; regulations must be crafted in such a way that allows the effective and
efficient development of the MFIs (Peck Cristen et al., 2003).
Therefore, the availability of a set of enforceable binding rules called prudential regulation or prudential supervision
that govern the conduct of microfinance providers are essential. Prudential regulation refers to a set of general
principles or legal rules that aims to contribute to the stable and efficient performance of financial institutions and
markets (Chaves and Gonzalez_Vega, 1994). The purpose of prudential regulation is to ensure the financial soundness
of financial intermediaries such as banks, microfinance institutions, etc., and to prevent financial system instability.
Many countries are applying different instruments of prudential regulation. Therefore, there is a variation on the type
and scope of government regulation of depository financial intermediaries. The two frequently adopted instruments of
regulation are preventive and protective regulation. The preventive regulation is a pre-crisis measure that is taken by
external supervisors in order to reduce the probability of failure of the financial institutions. It tries to control the risk
exposure of the financial system. The external supervisors use entry and ongoing requirements as instruments of
preventive regulation. In addition, entry requirements ensure that only financially healthy institutions join the market
place. The entry requirements are usually based on the minimum capital requirements, ownership criteria, feasibility
studies, capital to asset ratio etc. This type of regulation is one of the most powerful actions that were taken by external
regulators. Preventive regulation might be most difficult to apply in Kenyan microfinance sector. Kenya is associated by
a less-regulated sector that follows different jurisdiction.
Protective regulation on the other hand is a post-crisis measure taken by external regulators to avoid run on deposits by
assuring the depositors that they will be the first to withdraw the funds from the financial intermediaries. Protective
regulatory instruments include government as a lender of last resort, deposit insurance, and the formalized process of
financial intermediaries restructuring and reform.
The regulations, whether preventive or protective, need an effective enforcement framework called prudential
supervision. Prudential supervision refers to the process of enforcing the regulatory framework (Chaves & Vega G.,
1994). It is an external oversight of the financial institution through examining and monitoring mechanisms to verify
compliance with the approved regulations. Through effective supervision, financial institutions are monitored and
directed to ensure that they comply with the regulatory requirements.
126
Evidence showed that efficient regulatory policies are useless if not backed by the enforcement mechanisms of efficient
supervision (Christen and Rosenberg, 2000). The prudential supervisory system works as an early warning for the
financial system. Thus, the more important aspect in the supervisory role is the existence of effective and accurate
supervisory indicators. Hence, the challenges that might face Kenyan regulatory authorities is to design effective
supervisory indicators for measuring risks, monitoring, and analyzing the impact of external events on the performance
of the microfinance services providers.
In addition, the effective mechanisms of supervision of financial institutions comprises offsite and on-site supervision.
The off-site supervision is an early warning system based on the analysis of the data reported to the supervisory
authority. On-site supervision such as CAMEL and PEARLS involves actual visits to the financial institutions to verify
that the data fed to the off-site system are accurate. However, recent development indicated that central banks are
moving towards introducing risk-based supervision approach. The main source of the microfinance institutions are
external and internal auditors.
Adoption of a sound system of regulation and supervision framework has gained substantial attention at the top level.
The rationale of that attention is to minimize the effects of market failure, protect public deposits and small depositors,
ensure integrity and financial stability of financial systems, and promote efficient performance of the institutions. 3 The
regulatory framework of any country should therefore have a clear rationale and objectives for regulating the financial
sector; otherwise, it will lead to wastage of scarce supervisory resources, unnecessary compliance burdens of licensed
institutions, and development of the financial sector will be constrained. Hence, any authority needs to design an
effective regulatory and supervisory system for microfinance that is flexible enough to comply with the diversity of
clients, permit fairness and cost effectiveness. According to (Chaves and Gonzalez_Vega, 1994), the regulatory and
supervisory system should be flexible enough to fit into the environment in which the MFIs operate, the market niches
they serve, and their institutional design.
4. Kenyan Microfinance Regulatory and Supervisory Legal Framework
Despite the low growth of the Kenyan economy in recent years, the countrys microfinance sector continues to evolve
rapidly as shown previously for the years between 2006 and 2009. The country encourages the introduction of
communication technology. Consequently, mobile money services are being used widely in Kenyan communities. This
innovation and rapid development of many local efforts driven by the demand side to provide financial services to
microfinance clients unreached through the formal channels, seem to have generally overtaken policy formulation by
the Kenyan government. The country recently encouraged the regulator to formulate a regulatory system for
microfinance through mandated standards of performance that assist the financial sector in moving from a
less-regulated environment to a tightly-regulated one. Kenyan microfinance sector is quite unlike the formal banking
sector or like other microfinance sectors in the neighboring countries. In Kenya, the sector is regulated and supervised
under different jurisdictions and laws. Because of that, it faces various challenges and constraints that might limit its
role to achieve the desired level of outreach and sustainability.
There are primary and secondary legislation regulating the microfinance industry in Kenya. Kenya issued separate
laws to promote microfinance. Despite of that microfinance in Kenya is regulated under different laws, including the
banking law and the Microfinance Act, which was issued in 2006 and amended in 2013. Hence, the Microfinance Act
20064 and the Central Bank of Kenya Act5 primarily governed the industry.
The main objective of the Microfinance Act is to provide the legal, regulatory and the supervisory framework for the
Deposit-Taking Microfinance Institutions (DTMs). The Act categorises the Deposit-Taking MFIs as nationwide MFIs
(operating countrywide) with a minimum core capital of KES 60M (USD 860,000) and Community MFIs (operating
within a specific administrative region) whose minimum core capital is KES 20M (USD 300,000). The Act makes
provisions for MFI license issuance, revocation, and restriction; provides for MFI entry into regulated status; defines the
minimum core capital requirements and prohibited activities; provides limits for loans or credit facilities; defines
ownership and management structure; provides for supervision by CBK; and stipulates the terms for periodic reporting
to the CBK.
The Microfinance (Amendment) Bill 2013 increased the range of financial services that the DTMs can offer. Moreover,
the amended version has differentiated between the regulated microfinance institutions and the un-regulated
microfinance lenders. This was because the law requires the regulated MFIs to incorporate the term DTM into their
names. Therefore, the amended Act enhances market confidence in Kenyas microfinance sector. In addition, Section 14
3
Armstrong and et al., cited in Thankom Arun, 2004
4
Laws of Kenya, the Microfinance Act 2006, (Chapter 19)
5
Laws of Kenya, the CBK Act, (Chapter 491)
127
of the Microfinance Bill gives DTMs the right to issue third party checks, operate current accounts, and perform foreign
trade operations. This recent amendment in the Kenyan microfinance law has transformed the DTMs into microfinance
banks. This transformation will help in reducing their reliance on expensive loans from local and international banks for
lending.
Hence, foregoing evidences support that microfinance sector in Kenya is regulated under the various primary and
secondary legislations. Apart from Microfinance Deposit Taking Institutions, other microfinance providers regulated
under different formality such as Building Societies, Churches. Based on that the sector, was expanded both formally
and informally. Thus, there are a number of microfinance licenses issued under Kenya microfinance laws. These are
about nine Deposit Taking Microfinance Banks providers, and 35 credit microfinance institutions. These are in addition
to the informal microfinance institutions and development partners.
The second element after the primary and secondary legislation is the supervisory authority and delegation. The main
supervisory authority for the deposit-taking microfinance institutions is the Central Bank of Kenya, while the
non-deposit taking microfinance activities are delegated to be supervised by the Microfinance Finance Unit of the
Ministry of Finance. Based on that, Kenya has defined three regulatory tiers. These tiers are defined under Deposit
Taking Microfinance (DTM) Bill and they represent both formal and informal microfinance providers.
The DTM bill is intended to regulate the three different tiers of microfinance institutions. The first tier comprises
formally constituted deposit-taking MFIs which are regulated and supervised by Central Bank of Kenya (CBK) via the
Deposit Taking Microfinance Bill. The Bill empowers the CBK to license, regulate, and supervise formally constituted
microfinance institutions intending to take deposits from members of the public. Furthermore, specific performance
parameters and appropriate guidelines were developed to facilitate the supervision of this group of MFIs. This group of
MFIs is also a member of the Deposit Protection Fund Board (a deposit insurance scheme) that protects depositors
deposit up to KES 100,000. The second tier comprises formally constituted credit-only MFIs that do not take deposits
from the public, but can accept cash collateral tied to loan contracts. This tier is regulated and supervised by the
Microfinance Unit in the Ministry of Finance through regulations issued by the Minister for Finance. The third tier
consists of informal MFIs such as ROSCAs, club pools, and financial services associations (FSAs) which are not
supervised by any government agency. However, donors, commercial banks, and government agencies from which they
obtain funds or that support this group are obligated to carry out due diligence and make informed decisions about
them.
In the year 2000, CBK set up a microfinance division in the Bank Supervision Department to participate in the drafting
of the Microfinance Bill and to develop prudential guidelines/regulations to be used once the Bill was in place. In 2004,
the Central Bank established a Rural Finance Department to address various policy issues concerning rural finance,
including microfinance. This department, in liaison with the Financial Institutions Department, is involved in
developing capacity to regulate and supervise those microfinance institutions that will be licensed under the DTM Bill.
Moreover, a full-fledged microfinance unit is envisaged at the Ministry of Finance to formulate policies and procedures
to address the challenges facing microfinance institutions that are not supervised under the CBK, especially those in the
rural areas. Also, they aim to build a database to facilitate better regulation and monitoring of their operations.
Likewise, an Association of Microfinance Institutions (AMFI) was registered in 1999 under the Societies Act by the
leading MFIs in Kenya to build capacity for the microfinance industry. AMFI currently has 59 member institutions
serving more than 6,500,000 poor and middle class families with financial services throughout the country. AMFI is
governed by a General Assembly and is led by a Board of Directors whose experienced practitioners are running some
of the leading microfinance institutions in Kenya. AMFIs mandate is to enhance collective action by MFIs and other
stakeholders to foster a conducive policy and regulatory environment for microfinance in Kenya. In addition, the
association is to strengthen the capacity of MFIs in delivering appropriate and sustainable microfinance services to
low-income people. That is through organization and coordination of workshops and training sessions; develop effective
systems for information collection, analysis and dissemination; develop and operationalize a Performance Monitoring
System for MFIs that will set standards and increase professionalism in the industry; and enhance collaboration,
linkages and partnerships.
Moreover, Kenya has established a Financial Reporting Centre under the Proceeds of Crime and Anti-Money
Laundering Act 2009 (the AML Act) that was operational in 2012. The centers principal role is to assist in the
identification of the proceeds of crime and the combating of money laundering. All banks, financial institutions,
non-bank financial institutions, mortgage finance companies, and forex bureaus are obliged to monitor and report
suspected money-laundering activities to the center, verify customer identity, establish and maintain customer records,
and establish and maintain internal reporting procedures. With regard to cash transactions, the reporting threshold for
reporting institutions is set at US$10,000 or its equivalent in any other currency, irrespective of whether or not such
128
transactions are suspicious.

The government issued new prudential guidelines to deal with a wide range of issues including licensing requirements,
corporate governance, board composition, remuneration of directors, capital adequacy requirements, liquidity
management, stress testing, foreign exchange exposure limits, prohibited business, anti-money laundering, consumer
protection, enforcement of banking laws and regulations, agent banking, and representative offices. These guidelines are
best summarized by reference to the circular issued by the CBK, which states that: Pursuant to its mandate of fostering
the liquidity, solvency, and proper functioning of a stable market-based financial system, the Central Bank of Kenya has
conducted a comprehensive review of the Prudential Guidelines and Risk Management Guidelines currently in use. The
review has been necessitated by developments in the national, regional, and global arenas and the need to proactively
strengthen the regulatory framework for banks and other institutions licensed pursuant to the Banking Act.
As part of Kenyas recent move to bring in adequate measures for consumer protection and to prevent money
laundering, the CBK has also published Retail Transfers Regulation, 2013 for the provision and regulation of electronic
retail transfers and e-money. Stakeholders were invited to review and comment on this draft regulation before it was
enforced. This regulation applies to all retail transfers utilizing an electronic payment method, as well as all payment
service providers that are not licensed as banks or financial institutions. The country has launched a credit
information-sharing mechanism in July 2010 that might positively affect the MFI operations. Through a mechanism that
is used by both individual and commercial banks, the CBK has ensured that banks strengthened credit appraisal
standards by incorporating credit reference reports in the credit risk appraisal. Moreover, Kenya Deposit Insurance Act
2012 provides for the establishment of an autonomous body called the Kenya Deposit Insurance Corporation, which
will replace the current Deposit Protection Fund Board, a department of the CBK. The KDI Act provides for the setting
up of a deposit insurance system, and the liquidation of deposit-taking institutions.
The above argument indicates that regardless of some shortcomings associated with the diversity of the regulatory and
supervisory Acts, rules, and bodies, Kenya has set clear guidelines for suspending, canceling, or revoking microfinance
licenses for illegitimate operations in cases where institutions cannot achieve acceptable performance and operating
standards for deposit takers and for the informal microfinance providers. Despite the performance of Kenyan
microfinance sector, it is still below the required level, which proved that the regulatory and supervisory rules alone are
helpless for microfinance sector outreach.
5. Summary and Conclusion Remarks
Most of the literature in the area of regulating and supervising MFIs confirms that the microfinance sector must be
regulated in order to have massive and sustainable delivery of financial services to the low-income people. Therefore,
the issue of prudential regulation and supervision might be one of the key successes for MFIs; yet, it is also a complex
matter because it keeps evolving. This article is an attempt to generate some evidence from Kenyas regulatory and
supervisory framework for microfinance through identifying its challenges and binding constraints that might hinder its
outreach for the clients countrywide.
The results showed that regardless of some shortcoming associated with the diversity of the regulatory Acts and bodies,
Kenya set clear guidelines for operating, suspending, canceling, or revoking microfinance licenses for a successful
handling of microfinance formal and informal institutions. This helps the regulated MFIs to strategize their operations
in such a way that avoids poor financial and operating performance. Despite that, the existence of more regulatory and
supervisory bodies involved in regulating and supervising microfinance providers in Kenya such as clubs, associations,
apart from KCB and the Ministry of Finance, might represent the main challenges, which have weakened the regulation
process. The informal microfinance sector is less regulated and associated with high risk. Hence, there is a need for
development of appropriate documentation tools/procedures, management information systems, governance and
internal control systems, particularly for the less-regulated tiers. The microfinance sector in this country and particularly
the informal sector lacks the expertise, which spotlights the need for capacity building to enhance operations and
improve risk management. Moreover, the high costs of transformation and operation, licensing, and the cost of stiff
competition from other financial institutions have hindered the performance of the DTMs. It is also worthy to note that
many MFI are moving towards the use of mobile phones for various transactions; yet there seems to be minimal
regulatory or supervisory framework in place to supervise these popular and globally acclaimed services.
Hence, one this research might recommend Kenya to adopt more unified microfinance model regulated between the
Central bank for deposit taking microfinance providers and the rest such as non-formal microfinance provider might be
under the Ministry of Finance with the assistance of the ministry of interior for the security matter.
Finally, Kenya needs to conduct further revision on the framework of regulation and supervision of its microfinance
sector since it might lead to performance improvement, thus enhancing the necessary resources mobilization for poverty
alleviation. This improvement in financial performance can be attributed to access to cheaper funds, which can then
129
be lent to the MFI customers as compared to dependence on expensive credit from macro-financial institutions.
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i
http://www.bu.edu/bucflp/files/2012/01/Central-Bank-of-Kenya-Act.pdf
ii
https://www.centralbank.go.ke/index.php/acts/.../153-2012-annual-report
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Matu Mugo
Regulation of Banking and

Payment Agents in Kenya
Fletcher School Leadership Program in Financial Inclusion:
Kenya Policy Memo
Kenya has made significant strides in recent years in extending financial services to
its populace. This has been accomplished on the back of the rapid expansion of
banks across the country, particularly in rural areas, and the transformational
introduction of mobile money transfer services in 2007. However, the battle for
financial inclusion remains far from won, and Kenyan policymakers and regulators
continue to develop and implement innovative models to expand financial inclu-
sion. To this end, the agent banking model was rolled out in 2010 to enable banks
to contract with third-party agents, just as telecommunications companies have
been doing since 2007.
This policy memo explores the tensions between the payment agent model run
by telecommunications companies and the banking agent model. It starts by out-
lining the supply and demand sides of Kenyas financial sector. The barriers to
financial inclusion, including income, literacy levels, product characteristics, and
geographical distance, are articulated. This memo analyzes the geographic distance
barrier in special detail. The areas of tension cited by banks include differing
requirements for payment and banking agents with respect to business track
records, liability, and exclusivity. This memo recommends a review of the require-
ments for both types of agents to allow for proportional regulation, based on risk
and types of services provided.
PROBLEM STATEMENT
Kenyas current development blueprint, Vision 2030, seeks to graduate the country
from a low- to medium-income country by 2030 (Government of the Republic of
Kenya, 2007). The vision is underpinned by massively upscaling access to formal
Matu Mugo leads teams at the Central Bank of Kenya that are responsible for the
review and development of policies to promote safe, affordable, and inclusive finan-
cial services. He has held various positions in the Bank Supervision Department over
the last 11 years. Before joining the Central Bank of Kenya, Mr. Mugo worked as an
auditor for KPMG, an international audit and consultancy firm.
This policy memo was originally written for the Fletcher School Leadership Program
in Financial Inclusion, where Mugo was a Fellow in 2011.
2012 Matu Mugo

innovations / volume 6, number 4 125
Matu Mugo
financial services from current levels of 23 percent to over 60 percent of the bank-
able (adult) population.1
The barriers to financial inclusion identified in national financial access sur-
veys carried out in 2006 and 2009 include costs of financial services (minimum
balances and fees), low financial literacy, documentation requirements, distance to
financial services locations, and income constraints. Long distances to financial
services locations increase the transaction cost to consumers in terms of transport
cost and time spent traveling. It is therefore critical that this constraint be
addressed in order to expand access to formal financial services.
The rollout of an extensive network of mobile phone payment agents in Kenya
since 2007 has, in large part, targeted this challenge. In 2010, with an eye to deep-
ening these initiatives, the Central Bank of Kenya (CBK) issued guidelines to
enable banks to offer a broad range of banking services through agents. This
framework differs from that for payment agents, which is currently guided by
requirements set by telecommunications companies. The Central Bank has also
recently issued draft regulations covering payment agents (Central Bank of Kenya,
March 2011). Banks have therefore submitted a request to the Central Bank to
review the agent banking guidelines in light of the requirements that differ from
those of payment agents. An urgent review of this problem by CBK is required to
maintain the momentum of the growth of financial inclusion through both pay-
ment and banking agents, and to ensure that achieving the Vision 2030 targets is
kept on track.
BACKGROUND
Overview of Kenyas financial sector
Financial access landscape (supply)
Kenyas financial sector comprises both the formal and informal financial sectors.
The formal sector is one of the largest and best developed in sub-Saharan Africa.
It is comprised of a number of different financial institutions and independent
regulators, each charged with the supervision of their particular subsectors. As of
December 31, 2010, the banking sector included 43 commercial banks, one mort-
gage finance company, two representative offices of foreign banks, 126 licensed
Forex Bureaus, five Deposit-Taking Microfinance Institutions, and one Credit
Reference Bureau, all supervised by the Central Bank of Kenya (CBK, June 2011).
The National Payment System, which is part of the financial system, is also over-
seen by the Central Bank. Other players include the capital markets, insurance,
pension schemes, and savings and credit cooperatives.
Financial access landscape (demand)
Kenyas financial access landscape has shown marked improvement over the past
few years, as revealed by two national financial access surveys conducted in 2006
and 2009 (FinAccess, 2006, 2009). As indicated in Figure 1, access to formal finan-
cial services increased from 18.9 percent of the bankable population in 2006 to
126 innovations / Inclusive Finance

Regulation of Banking and Payment Agents in Kenya
Figure 1. Financial Access Strand in 2006 and 2009

Source: FinAccess (2009)
22.6 percent in 2009.2 The number excluded from any formal or informal financial
service decreased from 38.4 percent in 2006 to 32.7 percent in 2009.
Barriers to financial inclusion

The key challenges and barriers to financial inclusion as revealed in the 2006 and
2009 surveys (FinAccess, 2006, 2009) and various related studies are as follows:
Low income continues to be the main barrier to expanding access, with 61.8
percent of the unbanked citing income-related barriers as the key reason for exclu-
sion.
Non-income-related access barrierssuch as documentation and qualifica-
tions, product characteristics, literacy levels, gender and cultural values, and geo-
graphical distancetogether constitute the second most important reason for
being unbanked.
While all of the above listed barriers are important, this memo will focus pri-
marily on the geographical distance barrier.
Initiatives to address distance/financial services outlets constraints

Growth in bank branches and ATMs
To reduce the distance to financial services, commercial banks have massively
expanded their branch and ATM networks in the last five years, as indicated in
Figure 2.

Matu Mugo
Figure 2. Kenyan Banking Sector: Branches and ATMs, 2005 to 2010

The number of bank branches expanded from 534 in 2005 to 1,063 at the end
of 2010, a 99 percent increase. The ATM network increased from 555 in 2005 to
2,052 in 2010, a 270 percent increase.
Bank branches have also expanded significantly in rural areas, as depicted in
Figure 3. The number of rural branches has expanded by 150 percent, from 181 in
2005 to 447 at the end of 2010. Urban branches, on the other hand, have expand-
ed by 75 percent, from 353 in 2005 to 616 at the end of 2010.
Mobile/payment and banking agents
One of the most significant initiatives in addressing access to financial services in
Kenya has been the development of mobile money transfer services. Safaricom,
Kenyas leading mobile operator, launched the M-PESA money transfer service in
2007. M-PESA has experienced viral growth in its first four years, gaining over 15
million subscribers and more than 20,000 agents.3 The introduction of mobile
financial services has helped to more than double the use of non-bank financial
institutions, from 7.5 percent of the bankable population in 2006 to 17.9 percent
in 2009 (FinAccess, 2009). The attraction of mobile financial services such as M-
PESA is their extensive reach all over Kenya, including in villages and slums (Klein,
2011).
The amendment of Kenyas Banking Act through the Finance Act of 2009 per-
mitted banks to use third parties (agent banking) to provide certain banking serv-
ices on their behalf. The Central Bank subsequently issued guidelines on agent
banking, in May 2010 (CBK, May 2010). The guidelines require banks to seek
CBKs approval for the agent network, as well as approval for specific agents, and
to clearly specify the services to be provided by the agents. It is the institutions
responsibility to vet the suitability of the agents in keeping with the guidelines. As

Figure 3. Kenyan Banking Sector: Branches Distribution, 2005 to 2010

of December 2010, CBK had granted approval to five institutions to engage agents.
Of these, two institutions had appointed a total of 8,809 specific agents, including
telecom-related agents and individual specific agents, spread across the country
(CBK, June 2011).
Representations by banks on a regulatory framework for banking agents
Following the rollout of agent banking in May 2010, banks have made proposals to
the Central Bank on possible areas of revision of the Agent Banking Guidelines.
This is based on their experience on the ground, as well as on the various frame-
works for payment agents contracted by mobile phone operators. The contracting
of payment agents is currently guided by the requirements of individual telecom-
munication companies. However, the Central Bank has recently issued a request
for comment on draft regulations on e-money and retail payment systems (CBK,
March 2011), which are intended to apply to payment agents.
In summary, the banking sector argues that three issues warrant special exam-
ination:
Payment agents are generally required to have at least a six-month track record
in an existing business before being contracted. Conversely, the Agent Banking
Guidelines mandate an 18-month track record for banking agents.
The Agent Banking Guidelines explicitly place liability for the agents actions
on the bank. The liability of telecommunications companies with respect to
liability for payment agents is not explicit.
Banking Agents cannot be exclusive and can serve more than one bank. For
payment agents, this is not explicit, and there are payment agents that exclu-
sively serve one telecommunications company.

Matu Mugo
The banking sector argues that the Agent Banking Guidelines should be
amended to allow for a tiered approach in order to create:
Payment agents whose requirements would be less rigorous and be similar to
those of telecommunications agents that offer only cash-in and cash-out serv-
ices
Banking agents whose requirements would remain as per existing agent bank-
ing guidelines but would be able to offer a broader range of services beyond
payments, including origination of deposit and loan accounts.
ANALYSIS
Policy considerations
Vision 2030 financial sector targets
Under Kenyas current develelopment blueprint, Vision 2030, a more efficient and
competitive financial sector is expected to drive savings and investments for sus-
tainable and broad-based economic growth. The central policy objectives of the
long-term strategy for the financial sector include improved access and deepening
of financial services and products for a much larger proportion of Kenyas popu-
lace (Government of the Republic of Kenya, 2007). The goals for the financial sec-
tor are to raise savings and investment rates from 14 percent to 25-30 percent of
GDP by 2030, and to increase bank deposits from 44 percent to 80 percent of GDP
by 2012 (Government of the Republic of Kenya, 2008).
Scaling-up of agent networks
The ambitious targets under Vision 2030 require massive expansion of access to
financial services for Kenyans. Identified constraints to accessing financial servic-
es, particularly distance to financial services points, will need to be addressed. The
proliferation of mobile money services in Kenya and the demonstrable success in
enhancing access to financial services provides key lessons. The success, particular-
ly of the pioneering M-PESA service, has been partly attributable to its wide net-
work of agents (Dittus and Klein, 2011; Klein, 2011; Mas and Radcliffe, 2011).
The effect of a large network of participants, particularly for M-PESA, has con-
tributed to its success. A similar network effect will be critical for banking agents
to get to scale and to have a significant impact on access to second-generation
financial services for savings mobilization and credit. The current mobile money
services offered by mobile operators are largely focused on first-generation pay-
ment services, although linkages with commercial banks are increasing.
Proportionate/risk-based regulation
The Kenyan financial landscape presents a unique ecosystem of both banking and
payment agents (Tarazi and Breloff, 2011). The proposals by banks in the earlier
part of this memo are to some extent illustrative of the tensions between the two
models, particularly given the head start afforded the telecommunications compa-

nies with payment agents. This begs the question of whether the regulatory regime
for both types of agents should be the same.
To determine the appropriate regulatory framework, financial services that
enhance financial inclusion need to be unbundled. The key components could
include exchange of different forms of money (virtual money for cash), storage of
money for safekeeping (without payment of interest), transfer of money from one
person/entity to another, and investment of money (intermediation) (Dittus and
Klein, 2011).
The model will then require varying degrees of regulation based on risk, which
is lowest with the exchange of different forms of money and highest with interme-
diation. This suggests differing intensity of regulation with light touch regulation
at the basic exchange of forms of money to intensive prudent regulation at the
intermediation end. Accordingly, it is useful to unbundle the banking and payment
agents in Kenya along these lines and recommend proportionate regulation.
Policy choices
Retain status quo

One choice is to maintain the status quo. Doing so would not entail any changes
in the existing regulatory framework for banking and payment agents. Rather, it
would mean taking a wait and see approach, allowing market forces to deal with
the unlevel playing field for banking and payment agents. Although this approach
represents the easiest course of action, it runs the risk of slowing Kenyas rapid
progress toward financial inclusion. More importantly, it could deter the achieve-
ment of the ambitious financial sector targets set out under Vision 2030, especial-
ly if banking agents do not scale-up rapidly to benefit from network effects.
Amend regulatory framework for payment and banking agents
Amending the regulatory framework for both payment and banking agents is
another option. This would require more work but would ensure that Kenyas
financial inclusion momentum is not only maintained but possibly accelerated.
Extensive networks of banking and payment agents would be complementary,
with payment agents offering first-generation financial services and the banking
agents providing second-generation financial services.
RECOMMENDATION
The Central Bank of Kenya should review and amend the regulatory framework
for banking and payment agents by unbundling the services offered. A tiered
approach should be adopted in the Agent Banking Guidelines to incorporate pay-
ment agents (cash merchants), as well as full-fledged banking agents. The regu-
latory regime for cash merchants under both regimes (Agent Banking and Draft
E-Money Guidelines) should be reviewed to ensure proportionate regulation. The
regime for payment agents should be less rigorous than that of banking agents, as

Matu Mugo
they would only provide basic payment services. The key areas to be considered in
both guidelines for review should be:
Harmonization of track record and documentation requirements for both
banking and payment agents
Clarity on the liability of institutions contracting payment and banking agents
Exclusivity of agents
References
Central Bank of Kenya, Agent Banking Guidelines, May 2010.
Central Bank of Kenya, Draft E-Money and Retail Payment Systems Guidelines, March 2011.
Central Bank of Kenya, Bank Supervision Annual Report 2010, June 2011.
Dittus, Peter, and Klein, Michael. (2011, May). On Harnessing the Potential of Financial Inclusion, BIS
working papers No. 347.
FinAccess National Survey, Central Bank of Kenya and Financial Sector Deepening Trust, 2006.
FinAccess National Survey, Central Bank of Kenya and Financial Sector Deepening Trust, 2009.
Government of the Republic of Kenya, Kenya Vision 2030, A Globally Competitive and Prosperous
Kenya, 2007.
Government of the Republic of Kenya, First Medium Term Plan (2008-2012), Kenya Vision 2030,
2008.
Klein, Michael. (2011). Mobile Money in 2006 and 2016, private sector development blog. Available
at http://blogs.worldbank.org/psd. Retrieved April 16, 2011.
Mas, Ignacio, and Radcliffe, Dan, Scaling Mobile Money, Bill & Melinda Gates Foundation, April
2011.
Tarazi, Michael, and Breloff, Paul. (March 2011). Regulating Banking Agents, CGAP focus note 68.
Washington, DC: CGAP.
1. Bankable population refers to adults over age 18.

2. Formal financial services refer to use of a commercial bank, postal bank, or insurance product.
The formal other designation refers to use of services from non-bank financial institutions such
as savings and Ccedit cooperatives, microfinance institutions, and mobile financial services. The
informal strand uses informal financial services such as accumulating savings and credit associa-
tion, rotating saving and credit association, and groups/individuals. The excluded do not use any
formal/formal other or informal financial services.
3. Central Bank of Kenya statistics.

Policy brief
36012 | January 2012
Catia Batista, Felix Simione

and Pedro C. Vicente
International Experiences of
Mobile Banking Regulation
In brief In low-income countries, mobile banking is seen as the best opportunity to bring
financial services to the unbanked poor who are not profitable for commercial banks.
Risks associated with m-banking activities include:

The authorities losing control over the money supply when cash is exchanged for
m-money (affecting the velocity of circulation and the relation between the money
supply, nominal output and income).
Keeping money safe - Back up-systems are needed, as well as registration
procedures such as the know-your-customer procedure are needed.
Trasferring money - associated with reliability and integrity of the transport
mechanism, m-money moving across borders and the flow of capital, as well as
risks regarding identification of parties.
Similar investment risks to networks, as to banks that are free to on-lend deposits.
Regulators typically address fund safeguarding concerns by requiring such issuers

mainain liquid assets equivalent to the total value of the customer funds collected.
Even when deposit insurance exists, the value of pooled accounts is typically much
larger than insurance coverage limits, leaving both issuer and customer more exposed.
Many systems dont provide safeguards against creditor claims as often the funds are
pooled and held in the name of the issuer, not in the name of the customers.
M-banking regulations that adopt a risk-based approach to combating money

laundering and terrorist financing that are not adapted to low-income clients risk
preventing m-banking from getting off the ground
Ideas for growth

www.theigc.org
Introduction
Safaricoms The introduction of mobile banking (m-banking) services in both high and low-
M-PESA started income countries has revolutionized traditional notions of banking. In low-income
in March 2007 countries in particular, m-banking is regarded as an opportunity to bring financial
and, by September services to the unbanked poor who are not a profitable target for commercial banks.
of 2009, over 8.5
million Kenyans had The promise of m-banking lies in the fact that access to these services requires no
registered to use the more than access to a widely available and inexpensive technology such as mobile
service telephony, even for poor uneducated individuals who are typically marginalized by
traditional banking providers. This promise has been materialized most successfully
in Kenya, where Safaricoms M-PESA started in March 2007 and, by September of
2009, over 8.5 million Kenyans had registered to use the service and US$3.7 billion
(10 percent of Kenyas GDP) had been transferred over the system.
The success of Kenyas M-PESA has raised the question of how most effectively
to regulate mobile money services. As pointed by Ivatury and Mas (2008), mobile
network operators (MNOs) like Safaricom are well-placed to reach customers
with affordable financial services due to their existing customer base, marketing
capabilities, physical distribution infrastructure, and experience with highvolume,
low-value transactions (e.g., the sale of airtime). However, regardless of this
potential to bring financial services to low-income populations, regulators are often
reluctant to permit MNOs to directly contract with customers for the provision of
financial services.
As pointed by Tarazi and Breloff (2010), taking redeemable money from the public
is very close to accepting public deposits - an activity almost always reserved
for prudentially regulated financial institutions, such as commercial banks.
Funds kept with such banks are protected by strict prudential requirements (and
related supervision) to ensure systemic stability and deposit security, and these
same requirements would typically apply to electronic value issued by banks in
exchange for deposited funds. In contrast, nonbanks are rarely subject to the kind
of prudential regulation that applies to banks, so when nonbanks issue e-money,
regulators are understandably concerned about ensuring adequate protection for
customer funds.
Nevertheless, as policy makers around the world recognize the potential for
nonbank e-money issuers to significantly promote financial services among low-
income populations, a number of regulations have been approved, permitting
nonbanks to contract directly with customers for the issuance of emoney. For
instance, in Cambodia and Kenya the approach has been to act on an ad hoc
basis through no objection letters and conditional approvals of m-banking
services. From Afghanistan to the Philippines, West Africa to the European Union,
jurisdictions around the world have adopted regulation that enables a leading role
for nonbanks - while mitigating the risks presented by the involvement of a service
provider that is not subject to full prudential regulation.
In this note, we will present a typology of m-banking implied risks and

corresponding regulation, followed by a broad description of the international
Policy brief 36012 | January 2012 International Growth Centre 2

experiences of m-banking regulation in countries such as Afghanistan, Brazil,
Cambodia, India, Indonesia, Kenya, Malaysia, Philippines, South Africa, and
UEMOA1 , based mainly on the work by Lyman et al. (2008) and Tarazi and
Breloff (2010). We will not address issues related to the telecommunication side of
m-banking regulation, which Alampay (2010) reviews in detail.
What is m-banking?
Taking redeemable According to Alampay (2010), m-banking is a form of electronic banking
money from the (e-banking) delivered via mobile networks and performed on a mobile phone.
public is very close E-banking itself is defined in Basel (1998) as the provision of retail and small value
to accepting public banking products and services through electronic channels; these include deposit
deposits taking, lending, account management, the provision of financial advice, electronic
bill payment and the provision of other electronic payment products and services,
such as electronic money.
Following Tarazi and Breloff (2010), our working definition of electronic money
(e-money) refers to electronically recorded value issued against the receipt of
equivalent value. Once issued, this electronic value may be redeemed for cash,
transferred between customers, or used by a customer to make payments to
merchants, utility companies, and other parties. E-money may be issued by banks
or nonbanks, where bank refers to any supervised and prudentially regulated
financial services institution.
Finally mobile money (m-money) is described as a form of e-money that allows for
mobile phone subscribers whether banked or unbanked to deposit value into
their mobile account, send value via a simple handset to another mobile subscriber,
and allow the recipient to turn that value back into cash easily and cheaply (GSMA,
2009).
How to regulate m-Banking? Risks and regulation
Banking regulation aims at preventing known asymmetric information problems,

such as moral hazard created by the existence of a lender of last resort or adverse
selection of borrowers. In this way, it is hoped that risks to the financial system and
to the overall economy are mitigated. An additional function of banking regulation
is to control the creation of money by credit providers.
The regulation of m-banking pursues the same broad objectives as the regulation of
traditional banking, regardless of whether the m-banking providers are banks or
not. Klein and Mayer (2011) provide a typology aimed at isolating the fraction of
risks associated to m-banking activities out of all risks associated with a traditional
financial organization. We next summarize the Klein and Mayer (2011) risk and
1. UEMOA is the acronym in French for West African Economic and Monetary Union. It includes Benin,
Burkina Faso, Cte dIvoire, Guinea-Bissau, Mali, Niger, Senegal, and Togo.

implied regulation2 typology adding some considerations by other authors, as
indicated.
Exchanging forms of money

When m-money is exchanged for cash, the parties to the exchange begin by getting
confirmation of the transfer by SMS and, once that information has been received,
the exchange can proceed. The exchange functions of m-banking can be handled
through normal commercial law dictating the contractual relationship between
customer and cash merchant, between the merchant and the wholesaler and between
the merchants, wholesalers and MNO. Beyond this, the pure element of exchange
does not raise financial risks requiring the imposition of prudential regulation.
Monetary concerns arise when competing currencies are issued by different parties,
By making
the key concern being whether the monetary authorities lose control over the money
transactions more
supply. When exchanging cash for m-money, money is not being created; one form
transparent... mobile
of money (cash) is simply being exchanged for another. Nevertheless, by facilitating
banking may make it
the exchange and allowing transactions to occur at distance through mobile
simpler for monetary
connections, it may affect the velocity of circulation and therefore the relation
authorities to observe
between the money supply and nominal output and income. Monetary authorities
and measure changes
need to be aware of this and the likely impact of mobile banking on transactions.
in the velocity of
However, by making transactions more transparent and the determination of
circulation
aggregate levels of expenditure more readily measurable, mobile banking may make
it simpler for monetary authorities to observe and measure changes in the velocity
of circulation.
The monetary authorities may thus require the account provider to provide regular
information about volume and structure of payment transactions.
Keeping money safe

A record needs to be created that establishes who owns the account and how access
is gained to the account. In addition, an account requires rules on how the records
are maintained and how the owner is informed about transactions and the balance
on the account. The key to any safe-keeping function is regulation that assures the
integrity of the system and requires procedures to be subject to audit (Makin, 2009).
Back-up systems are needed to ensure that account information can be recovered in
case of physical destruction or theft.
An additional requirement related to safe-keeping is the registration of m-banking

accounts. Knowyour-customer (KYC) procedures are a key element in the fight
2. Note our working definition of the different types of regulation, following Klein and Mayer (2011):
Business conduct regulation encompasses such fields as consumer protection and anti-money laundering
measures. The most basic question is whether to rely purely on normal commercial law and the means
for redress it provides, in which case buyers of services are at risk and, if hurt, they need to seek redress
via normal dispute resolution procedures. Prudential regulation may require more substantial discretion.
Core tools are capital adequacy and liquidity requirements, but also rules governing risk-taking on the
asset side. For example, regulators may limit credit growth or require certain loan-to-value ratios. It is a
mantra of prudential regulation that it should be rulebased as far as possible but in practice substantial
discretion may be required particularly when assessing system-wide risks, namely macro-prudential
regulation.

The key to any against money laundering and terrorism financing. KYC procedures typically
safe-keeping function require customers to present valid identification and providers to verify the
is regulation that documents and store copies. They establish the identity of the owner, process
assures the integrity the request for account opening and perform checks required by Anti-Money
of the system and Laundering/Combating the Financing of Terrorism (AML/CFT) regulation.
requires procedures
to be subject to These requirements can present obstacles to financial inclusion in several ways.
audit First, it may constitute an obstacle to poor people who do not have ready access
to documents, especially in countries with no national ID scheme. Second, extra
operational requirements may impose a higher account opening cost for banks, to
the point of making low-balance accounts economically unprofitable. Finally, it may
present logistical problems to rural retail outlets which do not have access to copy
machines or lack stable electricity supply.
The notion of proportionate or risk-based KYC procedures is well established

within the Financial Action Task Force (FATF)3 principles and it should enable
an easy, cheap entry proposition for previously unbanked people. As customer
balances and transactions volumes grow, the KYC and security arrangements can be
tightened progressively.
Transferring money
Poor people often transport their money themselves or give it to friends or to a bus
driver to take to their relatives. Safer and cheaper means of transport are hugely
in demand. The issue is reliability and integrity of the transport mechanism.
The telecommunications provider may be subject to special regulations arising
from consumer protection and competition policy concerns, but specific financial
regulation is not obviously required for the movement of money across physical
distance.
A special case arises when m-money is moved across national borders. This may be
of concern where monetary authorities seek to implement some form of control on
the movement of capital. The reason for concern is not that the physical transport
risks require prudential regulation but that local currency may be exchanged into
foreign currency. Currency control regulations may thus be an issue and restrict
the transfer of m-money across borders - although in practice the amounts being
transferred in m-transfer systems tend to be below the limits imposed on the transfer
of cash or other assets for capital control purposes.
Currency control The account owners involved need to be informed about whether the instructions
regulations may have been carried out and they need to receive verification. Systems are thus required
thus be an issue and to insure the integrity of this process including identification of the parties involved
restrict the transfer and, depending on the degree of integrity sought, special passwords and other
of m-money across identifiers may be required. To protect information in transit varying degrees of
borders encryption may be required and measures to prevent and detect attempts to steal
information, for example, via hacking.
3. The FATF sets international AML/CFT standards and oversees compliance monitoring.

Over and above normal contractual relations, the form of regulation that is required
in relation to transportation is therefore conduct of business. Prudential regulation
is not required.
Investing money
The exchange of money, safe-keeping and transfer can all happen without involving
lending or other investment. In this case, the money of depositors is not invested
and not subject to any investment risk. Prudential banking regulation only applies
to deposit-investing institutions, not to purely deposit-taking ones.
Compared to a model where the account provider keeps deposits in a safe-deposit

box, an MNO that holds deposits in an amount equivalent to the m-money value it
provides is performing a rudimentary lending function as banks are free to on-lend
these deposits. The risk of such an investment is thus equivalent to the risk of a
deposit in banks that are subject to supervision by the relevant regulator.
An MNO that Hence, where deposit in banks is allowed or required, regulation may limit deposit
holds deposits in an options to the safest of instruments and insist on some level of diversification
amount equivalent among invested banks.
to the m-money
value it provides In summary, as stated by Alexandre et al (2011), a deposit-taking institution that
is performing a does not on-lend funds and instead commits to place 100% of deposits raised in
rudimentary lending one or more pooled accounts in supervised banks does not give rise to prudential
function as banks are or liquidity risks; indeed, it is not that they are prudentially unregulated, as in fact
free to on-lend these they are subject to the highest level of prudential regulation imaginable: a 100%
deposits reserve requirement; in this manner, regulatory and supervisory concerns can be
circumscribed to operational and technology risks.
A final note is deserved by a couple of emerging regulatory questions raised by

Tarazi and Breloff (2010). According to these authors, regulators are currently
confronting questions about whether emoney accounts should enjoy the same
benefits and protections as bank accounts. In particular:
Should e-money issuers be permitted to pay interest on e-money

accounts?
Most regulatory authorities consider the payment of interest a feature of a bank
deposit. However, this distinction between payments and banking activity is of
questionable legal merit. Collecting repayable funds from the general public is
arguably a deposit regardless of whether it is collected by a bank or payment
services provider (Tarazi, 2009). As e-money is increasingly used as a savings vehicle,
and as customers naturally desire to earn interest, regulators may be forced to re-
evaluate perceived risks and reconsider permitting nonbank e-money issuers to pay
interest earned on pooled accounts.
Should the funds backing the e-float be covered by deposit

insurance schemes?
In most developing country frameworks, e-money is not considered a deposit and,

thus, is not covered by deposit insurance. However, as discussed, to the extent
underlying customer funds are kept in bank accounts, such funds are exposed to
the risk of bank failure. Even in circumstances where deposit insurance exists, the
value of pooled accounts is often much higher than the applicable deposit insurance
coverage limits. As electronic value offerings grow in volume and popularity, and
as evidence mounts that e-money schemes are increasingly being used as savings
vehicles, regulators may want to consider extending deposit insurance protection at
the level of individual customer emoney balances or alternatively raise the ceiling
for pooled accounts. Many developed countries already provide such deposit
protection. The United States, for example, expressly characterizes the funds
underlying stored-value cards as deposits covered by deposit insurance as long as
such funds are placed in an insured institution (FDIC, 2008).
Specific m-banking regulation issues and

experiences
We now turn to providing a broad description of m-banking regulation efforts in a

variety of different countries and contexts. This discussion closely follows the work
of Lyman et al. (2008) and Tarazi and Breloff (2010).
Fund safeguarding
In Kenya, Safaricom Fund safeguarding measures are aimed at ensuring that funds are available to
maintains fund meet customer demand for the cashing out of electronic value. In countries that
liquidity by placing have permitted MNO issuance of e-money, regulators have typically addressed
collected cash fund safeguarding concerns by requiring that such issuers maintain liquid assets
in prudentially equivalent to the total value of the customer funds collected (i.e., the total value
regulated banks of electronic value issued and outstanding, also known as the e-float). Liquid
pursuant to a prior assets are most often required to be maintained as accounts with a prudentially
agreement with the regulated bank but sometimes they may be maintained as other safe assets, such as
Central Bank government securities, although such securities may not always be as liquid as bank
accounts. Note that this is a more stringent requirement than imposed on deposit-
taking financial institutions, which are typically subject to reserve requirements
mandating only some small portion of overall deposits to be kept in liquid form
(typically cash) to satisfy potential depositor claims. Liquidity requirements exist in
Indonesia, Afghanistan, the Philippines, Cambodia, Malaysia, India (in connection
with prepaid payment instruments), and others. In Kenya, Safaricom maintains fund
liquidity by placing collected cash in prudentially regulated banks pursuant to a
prior agreement with the Central Bank of Kenya (CGAP, 2010).
Liquidity requirements are sometimes reinforced by restrictions on the use of

customer funds by the nonbank issuer for example, by prohibiting issuers from
using the funds to finance operating expenses. In Malaysia, for example, issuers
are expressly prohibited from using such funds for any purpose other than cashing
out against electronic value or executing funds transfers to third parties pursuant
to customer request. Other limitations on the use of customer funds are more
indirect. The Philippines expressly prohibits nonbank issuers from engaging in the
extension of credit, effectively ensuring customer funds are not endangered through
intermediation by an entity that is not fully prudentially regulated.

Diversification of e-float fund holdings
Funds held in prudentially regulated banks are not risk-free. When banks fail, they
cannot always pay their depositors, often leaving small value depositors to pursue
recovery through deposit insurance schemes. In countries with weak banking sectors
there is an even greater risk of bank failure coupled with the possibility that no
deposit insurance exists. However, even where deposit insurance exists, the value
of pooled accounts held by nonbank e-money issuers is typically much larger than
deposit insurance coverage limits, leaving the issuer and customers more exposed
in the case of bank failure. Afghan regulators sought to minimize the risk of bank
failure by requiring that when any e-money issuers e-float exceeds a specified
amount, no more than 25 percent of the cash funds backing such float may be held
in a single financial institution. No regulations outside of Afghanistan expressly
Funds held in
require such diversification as protection against bank failure, though the trustee
prudentially
of the M-PESA trust account in Kenya independently chose to minimize risk by
regulated banks are
dividing the cash backing M-PESAs efloat among more than one bank.
not risk-free
Fund isolation
Liquidity requirements, coupled with other restrictions on use, may prove to be
effective mechanisms for fund safeguarding. However, funds may still be at risk if
the customers ownership of the funds is unclear. While funds can be safeguarded
in accounts of prudentially regulated institutions, such funds are often pooled and
held in the name of the issuer not in the name of the customers. Therefore,
the nonbank issuer is often the legal owner of the accounts, thereby making the
underlying funds vulnerable to claims by the issuers creditors if the issuer goes
bankrupt or if accounts have been used as collateral to secure specific debts of the
issuer.
In Kenya, M-PESA customers are isolated from creditor claims and other ownership
threats by the use of a trust account that is administered by a third-party trustee and
held for the benefit of M-PESA customers. However, other jurisdictions, particularly
those jurisdictions where trust accounts do not exist, do not provide the same
protections. Indonesia, for example, mandates certain fund safeguarding measures,
but the bank accounts holding the funds are in the name of the nonbank issuer.
This is also the case in practice in Cambodia, although Cambodian regulators
are reportedly considering regulation to replicate the protections afforded by the
trust account structure in Kenya. Malaysia, Indonesia, and Cambodia require that
customer funds be deposited and managed separately from the issuers working
capital funds. However, while such separate management facilitates supervision
In Brazil, nearly any of an issuers compliance with fund safeguarding requirements, it does not isolate
retail establishment customer funds from claims by the issuers creditors.
with a cash drawer
can act as a banking Agents
correspondent. Brazil, India, and Kenya provide illustrative examples of the range of current
But the central regulatory practice with respect to the use of agents. In Brazil, nearly any retail
bank notes some establishment with a cash drawer can act as a banking correspondent. But the
restricting conditions, central bank notes some restricting conditions, namely that a bank is liable
namely that a bank is for the actions of its agents. By contrast, the Reserve Bank of Indias Business
liable for the actions Correspondent and Facilitator Circular, issued in early 2006, permits only a narrow
of its agents range of cooperatives, non-profit entities, and the postal system to be used by banks

as agents. In Kenya, the mobile phone-based MPESA stored-value accounts are
carefully structured so as not to constitute a banking activity under the Kenyan
Banking Act. This leaves M-PESAs provider, Safaricom free to choose its agents
based on its business judgment alone. Both Safaricom and Vodafone have their own
reasons to choose and manage agents carefully, given the potential reputation risk
to their core telecommunications business. However, they do not stand behind their
agents in the way Brazilian banks are required to do by regulation.
Anti-Money Laundering/Combating the Financing of Terrorism

(AML/CFT)
In many countries, a critical regulatory prerequisite for launching m-banking is
adopting a risk-based approach for combating money laundering and terrorist
financing. Unless the rules are adapted to the realities of low-income clients
who may have limited access to formal documentation and remote transactions
conducted through relatively unsophisticated retail agents, they risk preventing
mbanking from getting off the ground. The FATF sets international AML/CFT
standards and oversees compliance monitoring. It calls for national-level regulatory
regimes to require that adequate Customer Due Diligence (CDD, also known as
In many countries, KYC rules) be undertaken on all new accounts and on one-off cash transactions over
a critical regulatory designated thresholds. FATF-compliant CDD/KYC rules require identifying the
prerequisite for customer and verifying that customers identity using reliable, independent source
launching m-banking documents, data or information (FATF Recommendation 5).
is adopting a risk-
based approach for In addition to CDD/KYC, FATF standards require financial service providers to keep
combating money detailed transaction records (including documentation collected in identifying and
laundering and verifying the identity of customers) for at least five years (FATF Recommendation
terrorist financing 10) and that they report suspicious transactions promptly to the AML/CFT
authority (FATF Recommendation 13). FATF standards also mandate special
attention to threats that may arise from new or developing technologies that might
favor anonymity, and require policies and procedures be in place to address any
specific risks associated with non-face to face business relationships or transactions
(FATF Recommendation 8).
Inadequate national AML/CFT regimes without space for non-face-to-face account

opening, including CDD/KYC entrusted to staff of nonbank retail agents, or
remote account opening may stop branchless banking before it starts. However, the
experience of South Africa and the Philippines offers some encouragement to policy
makers and regulators who want both a FATF-compliant AML/CFT regulatory
regime and working m-banking services.
In the Philippines, policy makers managed to tighten AML/CFT regulation and

enforcement sufficiently to get the country removed from FATFs blacklist of
noncompliant countries and regions. At the same time, they arrived at regulatory
accommodations that permitted the launch of both the bank-based (Smart) and
nonbank-based (Globe) models of branchless banking. This includes mechanisms
that enable CDD/KYC to be conducted by agents, a key characteristic of both
Smarts and Globes mobile banking models. They also allow a multiplicity of
formal identity documents to be presented for verification purposes.

In South Africa, a carefully tailored exemption to otherwise applicable CDD/
KYC measures and a special allowance for remote account opening permitted the
launch of two different mobile phonebased branchless banking ventures (MTN
Banking and WIZZIT). At roughly the same time, South Africa was meeting the
stringent standards necessary to gain admission as a full member of FATF in 2003
(even holding the FATF presidency for 20052006). The exemption eliminated
the otherwise applicable requirement under South African regulation to verify a
customers physical address for accounts subject to a maximum balance cap and
a daily transaction limit (South African Ministry of Finance, 2004). One-third
of South Africans, particularly low-income individuals, have difficulties securing
documents to prove their physical address, mostly because they live in informal
housing (Truen et al, 2005). The allowance extended the exemption to mobile-based
services, permitting nonface-to-face account opening under certain circumstances.
Clients can open mobile banking accounts by submitting data remotely via mobile
phone. These data must then be verified against a third-party source, such as credit
bureaus or databases containing information from the Department of Home
Affairs. To limit risk, the functionality of accounts opened in this manner is more
restricted than under the exemption, namely in terms of transaction limits (South
African Reserve Bank, 2006). Reliable third-party databases in South Africa help
satisfy the requirement of FATF Recommendation 5 to verify customer identity
using reliable, independent source documents, data or information.
E-money and other stored-value instruments

WebMoney faces no A growing number of countries have already moved beyond pure payment services
prudential oversight, to offer a virtual transaction account where customers can park repayable stored
and customers funds value in electronic form for an indeterminate period and make payments and
are not protected other money transfers when they choose to. These models, to the extent that they
from the firms other facilitate payments via mobile phones, offer great potential for transformational
creditors branchless banking because they effectively constitute a retail payments network far
beyond the current banking and POS networks. Where the electronic stored value
is issued by a bank, the funds, or float, backing the stored value will be monitored
as a component of the overall prudential supervision of the bank, even if it is not
considered a normal bank deposit.
The regulatory treatment of nonbank-issued e-money and other stored-value

instruments in Russia and the Philippines illustrates two ends of the spectrum of the
countries where nonbanks are not prohibited entirely from offering electronic stored
value accounts. In Russia, WebMoney offers stored value accounts in unlimited
amounts that can be topped up, among other means, via electronic cash acceptance
terminals or through the purchase of scratch cards. WebMoney faces no prudential
oversight, and customers funds are not protected from the firms other creditors. In
the Philippines, the central bank used its broad regulatory powers to bring Globe
Telecoms GCash subsidiary GXI under its supervision. The central bank limited
the risk of GCash by requiring, among other things, daily and monthly transaction
caps, as well as a low cap on the amount customers may leave in their virtual
account. Moreover, GXI submits monthly reports on its activities to the central
bank.

Consumer protection
Furthermore, many of the countries studied started out with consumer protection-
related challenges not directly related to branchless banking. In Russia, for example,
consumer protection for all matters, from consumer product safety complaints to
credit card fraud, falls within the jurisdiction of a single, centralized, and lightly
staffed body. On the other hand, in India, primary legislative jurisdiction for
consumer protection lies at the state level, meaning providers face a patchwork of
different requirements depending on the location of their agents. In all countries
studied, to a greater or lesser extent, poorer and more remote clients may not know
about or understand their rights even if adequate regulatory protections are in
place.
Many of the
countries studied Payment system regulation
started out with Russia, the Philippines, and Kenya, none of which has comprehensive national
consumer protection- payment system legislation, are nonetheless the leaders among the countries studied
related challenges in the development of alternative, nonbank, technology-based payment services
not directly related to platforms. They prove that national payment system legislation is not necessarily a
branchless banking prerequisite for launching m-banking
Concluding remarks
This note describes the current international experience regulating the provision
of m-banking services. There is a great potential for nonbanks such as MNOs
to improve the reach and range of financial services for the unbanked, but the
challenge lies in creating regulation that mitigate the risks without harming the
dynamism of these new providers of financial services.
One of the lessons to be learned from the international experience is that m-banking
regulation is just a subset of traditional banking regulation focusing only on the
fraction of risks associated to mbanking activities out of all risks associated with
a traditional financial organization. Going over each potential risk associated with
m-banking, we conclude that, whenever the m-banking provider does not on-lend
funds and instead is obliged to place 100% of deposits raised in one or more pooled
accounts in supervised banks, m-banking activities do not give rise to prudential or
liquidity risks. Indeed, in this manner, regulatory and supervisory concerns can be
circumscribed to operational and technological risks.
Perhaps the most interesting international example is that of Kenya, the country
where the most notable m-banking experience has taken place, bringing financial
services to populations previously outside of the financial system and where
m-banking providers have actually been able to make profits with the operation. The
regulatory experience of Kenya has been one of not issuing e-money regulations and
yet permitting MNOs to provide financial services through no objection letters and
conditional approvals. This has consequences on the practice of m-banking in the
country. For instance, Safaricom maintains fund liquidity by placing its deposits in
prudentially regulated banks following a prior agreement with the Central Bank of
Kenya (CGAP, 2010), thereby minimizing prudential risks. In addition, the mobile
phone-based M-PESA stored-value accounts are carefully structured so as not to

One of the lessons constitute a banking activity under the Kenyan Banking Act. This leaves MPESAs
to be learned...is that provider, Safaricom free to choose its agents based on its business judgment alone.
m-banking regulation
is just a subset of The future of m-banking services can also already be guessed when looking at
traditional banking Kenya: M-KESHO was recently launched in Kenya as a partnership between
regulation Safaricom and Kenya-based Equity Bank. This new product uses M-PESAs
platform and agent network to provide an expanded set of banking services, namely
interest-earring savings accounts, micro-credit, and micro-insurance products. Such
partnerships are likely to feature in the next phase of m-banking, when MNOs are
likely to deliver a full array of financial services to those currently underserved by
traditional banking models.

References
Alampay, E. (2010), Mobile Banking, Mobile Money and Telecommunication

Regulations. LIRNEasia and UPNCPAG.
Alexandre, C., I. Mas and D. Radcliffe (2011), Regulating New Banking Models that
Can Bring Financial Services to All, Challenge, forthcoming.
Basel (1998), Risk Management for Electronic Banking and Electronic Money
Activities, BIS.
CGAP (2010), Research Note on Regulating Branchless Banking in Kenya, 2010

Update. http://www.cgap.org/gm/document- 1.9.42400/Updated_Notes_On_
Regulating_Branchless_Banking_Kenya.pdf
FDIC Financial Institutions Letters, 2008, Insurability of Funds Underlying Stored

Value Cards and Other Nontraditional Access Mechanisms, New General Counsels
Opinion No. 8. Washington, D.C.: FDIC, 13 November.
GSM Association [GSMA] (2009), Mobile Money for the Unbanked, Annual
Report 2009. http://www.gsmworld.com/documents/mmu_2009_annual_report.pdf
Klein, M. and C. Mayer (2011), Mobile Banking and Financial Inclusion: The
Regulatory Lessons, Frankfurt School of Finance and Management Working
Paper Series No. 166.
Lyman, T., M. Pickens and D. Porteous (2008), Regulating Transformational

Branchless Banking: Mobile Phones and Other Technology to Increase Access to
Finance, CGAP Focus Note 43.
Ivatury, G. and I. Mas (2008), The Early Experience with Branchless Banking, CGAP
Focus Note 46.
Makin, P. (2009), Regulatory Issues Around Mobile Banking, OECD, Paris, mimeo.
Porteous, D. (2009). Mobilizing Money through Enabling Regulation. Innovations,

Vol. 4, No. 1, Pages 75-90.
Tarazi, M. and P. Breloff (2010), Nonbank E-Money Issuers: Regulatory Approaches

to Protecting Customer Funds, CGAP Focus Note 63.

About the authors
Ctia Batista is an Assistant Professor at Nova University
of Lisbon. She obtained her Ph.D. from the Department
of Economics at the University of Chicago. Her first post
was at the Department of Economics at the University
of Oxford, followed by the Department of Economics at
Trinity College Dublin. In the past she has also worked at
the International Monetary Fund and at the Portuguese
Catholic University. She is the Executive Director of
NOVAFRICA (a research center focused on economic
development in Africa), a Research Affiliate at CReAM
(the Centre for Research and Analysis of Migration), and
the World Bank. Ctias main research interests are on
migration and remittance flows, economic growth, income
inequality, and education.
Felix Simione is a Economist at International Monetary

Fund.
Pedro Vicente is an Associate Professor in Economics at

the Universidade Nova de Lisboa and is also the Scientific
Director for NOVA Africa. He is the Lead Academic for
the IGC-Mozambique programme. Previously he was a
Lecturer (Assistant Professor) in Economics at Trinity
College Dublin, and a Visiting Lecturer/Research Associate
at the Centre for the Study of African Economies at the
University of Oxford. He researches on the political
economy of development, namely on corruption, vote
buying, and conflict, with a special interest in Africa. He
designed and conducted field experiments during elections
in Nigeria and Sao Tome and Principe. He holds a Ph.D. in
Economics from the University of Chicago and is affiliated
with BREAD.
January 2012 International Growth Centre 15

The International Growth Centre
(IGC)aims to promote sustainable
growth in developing countries
byproviding demand-led policy
advicebased onfrontierresearch.
Find out more about

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www.theigc.org
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Yale Human Rights and Development Journal
Volume 14
Article 1
Issue 1 Yale Human Rights and Development Journal
2-18-2014
Culture, Dissent, and the State: The Example of

Commonwealth African Marriage Law
Johanna E. Bond
Follow this and additional works at: http://digitalcommons.law.yale.edu/yhrdlj

Part of the Human Rights Law Commons
Recommended Citation
Bond, Johanna E. (2011) "Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law," Yale Human Rights
and Development Journal: Vol. 14: Iss. 1, Article 1.
Available at: http://digitalcommons.law.yale.edu/yhrdlj/vol14/iss1/1
This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale
Human Rights and Development Journal by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information,
please contact julian.aiken@yale.edu.
Bond: Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law
Article
Culture, Dissent, and the State: The Example of

Commonwealth African Marriage Law
Johanna E. Bondt
This is an explosive time for those seeking to define the meaning and
parameters of marriage. The subject has generated heated debate
worldwide. In June 2010, the European Court of Human Rights declined
to extend marriagerights to a gay Austrian couple, but the Court carefully
laid the foundation for the recognition of such rights when a European
consensus on the issue emerges. In July 2010, Argentina extended to
same-sex couples the right to marry, joining nine other countries that
legally recognize same-sex couples' right to marry. In August 2010, a
United States district judge struck down a California ban on same-sex
marriage. Marriage,as a legal status and a social construct, continues to
evolve.
In recent years, some theorists have questioned the continued salience of

marriageas a legal category and advocated a minimal role for the state in
marriageregulation. Those challenging marriage as an institution and the
state's role in marriage regulation do so for legitimate and compelling
reasons, primarily related to the role of the institution in perpetuating
sexism and heterosexism. This Article is the first to explore the
transnational applicability of this critique of marriage. In light of this
critique, the Article interrogatesthe role of the state in marriage regulation
in the particularcontext of Commonwealth African states. In contrast to
those arguingfor a limited or nonexistent role for the state in the ordering
of private, intimate relationships, the Article argues strongly for expanded,
rather than reduced, state intervention in marriage. Robust state
regulation will promote equality within individual relationships and
t Associate Professor of Law, Washington and Lee University School of Law. For their
insightful comments on earlier drafts of this Article, special thanks go to participants in the
Lat-Crit XIV Works-in-Progress Panel, Junior International Law Scholars Association, the
William and Mary Faculty Workshop Series, the Southeastern Association of Law Schools
Family Law Panel, Elizabeth Bruch, Vivian Hamilton, J.D. King, and Adrien Wing. For their
excellent research assistance, I also thank Kelsey Baughman, Meredith Conrad, Massie Payne,
Emily Sowell, and Kristin Stewart.
Published by Yale Law School Legal Scholarship Repository, 2011 1

Yale Human Rights and Development Journal, Vol. 14 [2011], Iss. 1, Art. 1
2
YALE HUMAN RIGHTS & DEVELOPMENT L.J. [Vol. 14
among relationships, including same-sex relationships.
The Article proposes a three-part strategy for promoting equality in

marriage. First, states with plural legal systems, such as those in
Commonwealth Africa, should preserve the plural legal architecture of
marriage but integrate the relevant laws by establishing a legislative core
of rights within marriage. Second, states should promote equality among
intimate relationships by building on the existing marriage "menu"
options, adding options for same-sex couples when the political climate is
ripe for such reform. Third, states should explore traditions and
customary law that support broader understandings of family and
caregiving, moving the focus offamily law beyond the heterosexual spousal
dyad.
INTRODUCTION
Marriage matters. In recent years, activists and scholars from all over
the world have challenged the traditional parameters of marriage,
questioning eligibility requirements and legal benefits that arise from
marriage.' Some advocate for the elimination of marriage as a legal status
while others argue for the expansion of marriage rights to same-sex
couples. 2 Both proposals have generated significant controversy and called
into question the role of the state in marriage regulation. A number of
theorists in the global North argue that reducing the state's role in marriage
regulation, or eliminating it altogether, will promote equality for women
and same-sex couples. This Article is the first to explore the transnational
application of these important theoretical contributions. The Article
assesses the role of the state in marriage regulation in the context of
Commonwealth African states and concludes that robust state intervention
in marriage has the greatest potential to promote equality within and
among families.
1. Dorian Solot & Marshall Miller, Taking Government Out of the Marriage Business, in
MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS 70,71 (Anita Bernstein ed., 2006) ("[Tihe
state acts as a hands-off licensing bureau and divorce granter, making marriage relatively easy
to enter and exit, yet maintaining legal marital status as a key determinant of eligibility for
more than one thousand federal rights and obligations. Cultural lag in family law leaves other
kinds of family relationships dangerously ignored and penalized.").
2. See, e.g., Martha Albertson Fineman, The Meaning of Marriage, in MARRIAGE PROPOSALS,
supra note 1, at 29; Samuel A. Marcosson, Multiplicities of Subordination: The Challenge of Real
Inter-Group Conflicts of Interest, 71 UMKC L. REv. 459, 460 (2002) ("WThere has been an active
campaign by LGBT activists to expand the institution of civil marriage to include equal
recognition of the marriages between same-sex partners."); Summer L. Nastich, Questioning the
Marriage Assumptions: The Justifications for "Opposite-Sex Only" Marriage as Support for the
Abolition of Marriage, 21 LAW & INEQ. 114, 132 (2003) ("Abolishing marriage, however, is a
meritorious means to a just end. Viewed in light of the struggle for [] equal rights . ., abolition
of the legal institution of marriage equalizes these members of society in ways that same-sex
marriages and 'civil unions' will not.").
http://digitalcommons.law.yale.edu/yhrdlj/vol14/iss1/1 2
2011] Culture, Dissent, and the State 3
For the vast majority of women in Commonwealth Africa, 3 marriage

determines social acceptance, financial well-being, and even physical
health. 4 Despite the centrality of the institution, women enjoy vastly
different rights within marriage depending upon whether the couple
marries according to statutory law, customary law, or religious law.5 The
level of state intervention in marriage depends, in large part, on the type of
marriage into which a couple has entered. 6 Civil or statutory marriage
suggests a high level of state control while the state cedes to local
communities much regulatory control over customary and religious
marriages.
Although some feminists have recently argued that the state should not
be involved in the regulation or promotion of marriage, the state has a
critical role to play in the protection of women's rights within marriage.
The state has an obligation to promote equality both within and among
intimate relationships. 7 The state's obligation to promote equality within
relationships involves the promotion of gender equality within individual
relationships. The obligation to promote equality across or among
relationships concerns the state's exclusion of certain types of relationships,
such as same-sex relationships, from state recognition. In the
Commonwealth African context, this dual obligation is best served not by
less regulation, as some would argue - but by more.
This Article provides an overview of marriage in Commonwealth
African countries, explores the underlying values that animate reform of
the plural legal systems in these countries, and offers a justification for
contemporary state intervention in the customary marriage regime. The
Article explores the argument of some Western feminists that the role of the
state in marriage regulation is obsolete and considers the saliency of this
3. The African countries in the Commonwealth include: Botswana, Cameroon, The

Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Nigeria,
Seychelles, Sierra Leone, South Africa, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe
(although Zimbabwe withdrew in 2003). Although it does not share the same colonial history,
Mozambique was included in the Commonwealth as a "special case." See Member States,
COMMONWEALTH SECRETARIAT, http://www.thecommonwealth.org/Internal/191086
/142227/members/ (last visited Feb. 21, 2011). This broad array of countries varies in history,
laws, cultures, languages, economics, and politics, to name a few. Although these differences
make generalizations difficult, most of the countries share some characteristics in terms of the
interaction between statutory law and customary law in the marriage context.
4. See generally VOICES OF AFRICAN WOMEN: WOMEN'S RIGHTS IN GHANA, UGANDA, AND
TANZANIA (Johanna Bond ed., 2005).
5. See generally Jeanmarie Fenrich & Tracy E. Higgins, Promise Unfidfilled: Law, Culture, and
Women's InheritanceRights in Ghana, 25 FORD1HAM INT'L L. J. 259 (2001).
6. See Catherine A. Hardee, Balancing Acts: The Rights of Women and Cultural Minorities in
Kenyan Marital Law, 79 N.Y.U. L. REv. 712, 721 (2004) ("Each type of marriage is different with
respect to the amount of control the national government exerts in defining both the substance
and procedures of the marriage contract.").
7. This Article builds upon the theoretical contributions of Linda McLain and others who
have characterized the state's responsibility as involving equality promotion both within and
across intimate relationships. See Linda C. McClain, Intimate Affiliation and Democracy: Beyond
Marriage?,32 HOFSTRA L. REV. 379, 383 (2003).
8. See, e.g., TAMARA METZ, UNTYING THE KNOT (2010); Fineman, supra note 2, at 29.

4
contention within the plural legal systems of Commonwealth Africa.

Although these arguments are an important and compelling part of the
discourse on women's and LGBT rights in the global North, they are less
persuasive in the particular context of Commonwealth Africa.
Part I of this Article identifies the characteristics of Commonwealth
African marriage within plural legal systems, including rights to enter into
marriage, rights within marriage, and rights at dissolution of marriage.
This description of the contours of marriage provides a backdrop against
which to measure the intransigence of gender roles and to assess the state's
role in challenging and transforming those roles. I do not intend to
describe Commonwealth African marriage in great detail here. To do so
would be impossible given the myriad variations on customary, religious,
and even statutory marriage laws. Customary marriage law, for example,
varies not only within countries but also among ethnic groups and even, at
times, among villages. 9 My goal in this section is rather to sketch the
parameters of marriage under different marriage regimes, primarily
customary and statutory law. Although marriage under religious law,
including Islamic and Hindu laws, forms an important part of the marriage
mosaic in Commonwealth Africa, this Article focuses largely on
comparisons between customary and statutory marriage.10 This section
highlights the ways in which customary marriage law discriminates against
women."
Part II explores the values that have shaped the evolution of marriage
law within plural legal systems, including the impact of colonialism, the
desire to preserve culture and tradition, the desire to promote women's
equality within the family, and the recognition of choice in governing
marriage law. As I have argued elsewhere, the discourse on gender
equality in the region must engage both the promotion of equality rights
and the preservation of custom. 12 These dominant frames provide the
9. See, e.g., Ephraim N. Ngwafor, Cameroon: The Law Across the Bridge: Twenty Years (1972-
1992) of Confusion, 26 REVUE GENERALE DE DROIT 69, 75-76 (1995) ("Although there is some
resemblance in these various tribes, each tribe has a unique set of customary laws."); Abby
Morrow Richardson, Women's Inheritance Rights in Africa: The Need to Integrate Cultural
Understandingand Legal Reform, HUM. RTS. BRIEF, Winter 2004, at 19, 20 ("Customary law and
practices vary from tribe to tribe, and also within tribes, but are largely based on similar social
principles.").
10. For more information regarding marriage under Islamic law within the region, see 2
ENCYCLOPEDIA OF WOMEN & ISLAMIC CULTURES (Suad Joseph et al. eds., 2005); WOMEN'S
RIGHTS & ISLAMIC FAMILY LAW: PERSPECTIVES ON REFORM (Lynn Welchman ed., 2004).
11. See, e.g., Chuma Himonga, Transforming Customary Law of Marriage in South Africa and
the Challenges of Implementation with Specific Reference to Matrimonial Property, 32 INT'L J. LEGAL
INFo. 260, 262-263 (2004) ("[Mjuch of customary law, including the law of marriage, is riddled
with rules and practices that discriminate especially against women.").
12. See Johanna E. Bond, Constitutional Exclusion and Gender in Commonwealth Africa, 31
FORDHAM INT'L L. J. 289 (2008) [hereinafter Bond, Constitutional Exclusion]; Bond, Gender,
Discourse, and Customary Law in Africa, 83 S. CAL. L. REv. 509 (2010) [ hereinafter Bond, Gender,
Discourse]; see also Penelope E. Andrews, Who's Afraid of Polygamy? Exploring the Boundaries of
Family, Equality and Custom in South Africa, 2009 UTAH L. REv. 351, 354 (2009); David Pimentel,
Legal Pluralism in Post-Colonial Africa: Linking Customary and Statutory Adjudication in
foundation for any discussion of women's rights within the family in

Commonwealth Africa.
Part II also interrogates the plural legal system as a possible site for the
exercise of women's agency in the choice of governing marriage law.
Within the plural legal systems of Commonwealth Africa, statutory
marriage regimes can offer women a more equitable, though imperfect,
alternative to the relevant customary or religious marriage law.13 Within
these plural systems, women have the option to marry according to
statutory law, an option that allows some women to exercise agency in
protecting their own rights within the marital relationship.14 Eliminating
the state's role in marriage or eliminating marriage as a legal category in the
Commonwealth African context would simply narrow the range of
marriage options for women. Given the entrenched attachment to marriage
in the region, rates of customary marriage would rise, reducing the
opportunity for women to choose a marital regime that is more hospitable
to women's rights while preserving traditional notions of marriage. By
offering a civil law alternative to traditional marriage, the state plays a
crucial role in protecting the exercise of women's agency in the choice of
governing marriage law. Although the patriarchal social context of the
family constrains women's ability to exercise that choice, the existence of a
more equitable statutory alternative to traditional, customary marriage also
serves an expressive function. The statutory alternative, even if selected by
a minority of marrying couples in the region, expresses the state's
normative commitment to women's rights within the family.
In Part III of the Article, I advocate preserving a role for the state in
marriage regulation in Commonwealth Africa on two primary grounds.
First, the state has an obligation to promote gender equality within
relationships.15 The state must take seriously its international human rights
obligations to intervene in marriage. Abrogation of the state's role in
marriage regulation would, in fact, contravene human rights obligations.
Article 16 of the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), for example, requires States
16
parties to actively engage in the promotion of equality within marriage. It
would be impossible for a state to fulfill this obligation if it abdicated
responsibility over marriage regulation or constructed a minimal role for
Mozambique, 14 YALE HUM. RTS. & DEv. L.J. 59 (2011).

13. See EUNICE M. IIPINGE & DEBIE LEBEAU, BEYOND INEQUALITIES 2005: WOMEN IN NAMIBIA
10 (2005) ("The Married Persons' Equality Act (No. 1 of 1996) specifies equality of persons
within marriage and does away with the legal definition of the man as head of the house. . . .
However, the Act only covers couples married under civil law . . .").
14. A woman's ability to exercise this agency, however, is constrained by the patriarchal
social context of the family. See infra notes 261-66 and accompanying text.
15. For one state's approach to the promotion of equality within relationships, see LAW
COMM'N OF CAN., BEYOND CONJUGALITY 122 (2001); see also Linda C. McClain, WhVlat Place for
Marriage (E)quality in MarriagePromotion?, in MARRIAGE PROPOSALS, supra note 1, at 106, 107.
16. Convention on the Elimination of All Forms of Discrimination Against Women, art.
16, Dec. 18, 1979, 1249 U.N.T.S. 13, 18 (entered into force Sept. 3, 1981) [hereinafter CEDAW].

6
state intervention within marriage.

Second, the state has a role to play in the protection of equality across
relationships. To this end, the state must protect not only heterosexual
unions but those in same-sex relationships as well.1 ' The global landscape
of rights protection across relationships is evolving. In June 2010, the
European Court of Human Rights issued a judgment stating that the
Austrian government was not required to extend marriage rights to same-
sex couples. Importantly, however, the Court indicated that it might
someday require that states recognize the marriage rights of same-sex
couples if and when a European consensus emerges.18 In a surprising
development in July 2010, Argentina, a majority-Catholic country,
recognized same-sex couples' right to marry. 19 Argentina joins Belgium,
Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain,
and Sweden in legally recognizing the marriage rights of same-sex
couples. 20 In August 2010, a federal judge in the United States struck down
a California law banning same-sex marriage. 21 A number of other countries
across the globe fall short of providing marriage rights but extend
protection to civil partnerships or other forms of same-sex unions. 22
Despite the nascent trend toward state recognition of marriage rights
for same-sex couples, feminists and LGBT activists are divided as to
whether to embrace or reject marriage as an institution.-3 In this context, a
17. See THE YOGYAKARTA PRINCIPLES, Principle 24 (2007),

http://www.yogyakartaprinciples.org/principles-en.pdf ("States shall ... [t]ake all necessary
legislative, administrative and other measures to ensure that in States that recognise same-sex
marriages or registered partnerships, any entitlement, privilege, obligation or benefit available
to different-sex married or registered partners is equally available to same-sex married or
registered partners. . . ."); see generally William N. Eskridge, Jr., A History of Same-Sex Marriage,
79 VA. L. REV. 1419 (1993) (providing an overview of the history of same-sex marriage).
18. Schalk v. Austria, App. No. 30141/04, 11 46, 58 (Eur. Ct. H.R. June 24, 2010), available
at http://www.menschenrechte.ac.at/uploads/media/Schalk.undKopf ggOEsterreich
Urteil_01.pdf ("In the absence of consensus, the State enjoyed a particularly wide margin of
appreciation.... [T~he Court notes that there is no European consensus regarding same-sex
marriage.").
19. Luisita Lopez Torregrosa, In Latin America, a Harbingerof Women's Rights, N.Y. TIMES,
(July 27, 2010), http://www.nytimes.com/2010/07/28/world/americas/28iht-letter.html
(observing that "Argentina's recent turbulent past and brutal oppression and persecution of
gays and lesbians hardly foreshadowed the Patagonian nation's new global status as a
champion for them.").
20. Q&A: Argentina Gay Marriage Law, BBC NEWS (July 15, 2010),
http://www.bbc.co.uk/news/world-latin-america-10650267.
21. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), argued, No. 10-16751
(9th Cir. Dec. 6, 2010) (holding that a voter-enacted state constitutional amendment restricting
marriage to one man and one woman violated the Due Process Clause and Equal Protection
Clause of the Fourteenth Amendment of the United States Constitution).
22. See, e.g., Elizabeth Burleson, From Nondiscrimination to Civil Marriage, 19 CORNELL J.L. &
PUB. POL'Y 383, 394-96 (2010).
23. Fineman, supra note 2, at 29 (arguing for the abolition of marriage as a legal status and
leaving marriage to the realm of private contract); McClain, supra note 15, at 106 (supporting a
movement to expand marriage beyond the traditional definition of one man and one woman,
recogruzing same-sex marriage as well as other family arrangements); Mary Lyndon Shanley,
The State of Marriageand the State in Marriage, in MARRIAGE PROPOSALS, supra note 1, at 188, 188
(asserting that the state has a legitimate role in arbitrating committed adult relationships);
number of feminists and LGBT advocates argue that the state should not
privilege marriage over other types of familial relationships. 24 Although
some LGBT advocates argue for the extension of marital privileges to those
in same-sex relationships, others argue for dismantling the institution of
marriage as a way to promote equality for women and same-sex couples.25
Advocates of marriage deregulation suggest relegating the ordering of
intimate relationships to ordinary contract law or constructing a system in
which the state can register all manner of familial relationships and reward
or compensate, for example, those who engage in caretaking.26 This
method avoids the use of a rather blunt instrument (i.e. formal marriage) as
a proxy for behavior that the state would like to incentivize. 27 There are
limitations, however, on the application of marriage deregulation in
Commonwealth Africa. The arguments advanced by feminists and LGBT
advocates in the global North are highly contextual. The arguments,
compelling in their own context, are products of a geographic, political, and
temporal reality that is not readily transferable to Commonwealth Africa.
In Part IV, the Article proposes several ways in which a
Commonwealth African state might positively intervene in marriage,
promoting equality both within and across relationships. Abolishing
customary marriage systems is neither culturally sensitive nor feasible.
Recognizing the continued purchase of customary marriage in the region,
states should establish a "legislative floor" for marriage rights that applies
regardless of the type of marriage into which a couple has entered. The
"legislative floor" approach would standardize a minimum core of rights
within marriage, such as minimum age, consent, property rights, and
custody. The state would preserve aspects of customary marriage law that
are valued markers of community and ethnic identity and that do not
contravene the statutory standard of minimum rights within marriage. A
"legislative floor" approach will allow states to preserve the positive
aspects of customary and religious marriage law while reducing its
discriminatory aspects. 28
Claudia Card, Against Marriage and Motherhood, 11 HYPATIA 1 (1996) (arguing that the
institution of marriage is flawed and should be abolished rather than expanded to include
same-sex couples).
24. Fineman, supra note 2, at 40 ("If we are concerned with dependency and want to
ensure caretaking through social and economic subsidy of family, then why not focus on the
relationship of caretaker and dependent? It is not necessary to support this unit indirectly
through marriage when we can do so directly with policies that address the caretaker-
dependent relationship.").
25. See Shanley, supra note 23, at 188-189.
26. Solot & Miller, supra note 1, at 76 ("Broadly defining 'family' to include not only blood,
marriage, and adoptive relationships but also others who operate as caretakers in a significant
way on a long-term basis protects both the vulnerable and the caretakers .... ").
27. See Vivian Hamilton, Mistaking Marriagefor Social Policy, 11 VA. J. SOC. POL'Y & L. 307,
309 (2004) ("Marriage is proposed and accepted (so to speak) by lawmakers as a proxy for
socially desirable outcomes.").
28. See generally Bond, Gender, Discourse, supra note 12 (discussing the importance of
promoting equality while preserving the positive aspects of culture).

8
Rather than eliminating customary or religious marriage law in favor of

a universal statutory option, the "legislative floor" approach maintains a
plural system in which marrying couples select the governing law.
Standardization of rights through a "legislative floor" approach will allow
states to build upon the plural system and eventually increase the menu of
options available for marriage. Removing the state from the marriage
business would effectively reduce menu options by eliminating the state-
sponsored statutory version of marriage. States should preserve the
architecture of the plural system and, when politically feasible, increase the
menu options to include civil partnerships or marriage for same-sex
couples. Although distinct in its culture, politics, history, and economic
status, South Africa provides a regional example of a country that has
increased its menu of marriage options to include not only civil, customary,
and religious marriage but also civil partnerships and marriage for same-
sex couples. 29
Finally, states should explore areas of potential resonance between
state-sanctioned values of gender equality and customary law within
marriage. Customary law is dynamic; in theory, it will respond to evolving
social needs and pressures.30 There may be ways in which customary
notions of caregiving support a broader understanding of marriage and
familial roles. Caretaking responsibilities, for example, have traditionally
extended beyond the spousal dyad to include extended family members.31
HIV/AIDS has left a startling number of children in the region without
parental caregivers, leaving them in the hands of grandmothers and other
extended family members. 32 This de-centering of the spousal relationship
within customary understandings of family may allow for an exploration of
resonance between custom and contemporary critiques of the state's
privileging of individualistic, heterosexual marriage partners.
The Article strongly argues for preserving a role for the state in
marriage regulation within Commonwealth Africa. This conclusion stems,
in part, from the recognition that eliminating the role of the
Commonwealth African state in marriage regulation would do more harm
than good. In this sense, the transnational applicability of the marriage
critique is limited. Feminist arguments to the contrary, although important
29. See infra notes 386-94 and accompanying text.

30. See Alice Armstrong et al., Uncovering Reality: Excavating Women's Rights in African
Family Law, 7 INT'L J. L. & FAM. 314,327 (1993).
31. Michael J. Higdon, When Informal Adoption Meets Intestate Succession: The Cultural
Myopia of the Equitable Adoption Doctrine, 43 WAKE FOREST L. REV. 223, 232 (2008) ("[The costs
of child rearing in the extended family model of West Africa are 'rarely born exclusively by
biological parents; rather, they are shared by many people through the extended family and
other social networks."' (quoting Rebecca L. Hegard & Maria Scannapieco, Grandma's Babies:
The Problem of Welfare Eligibility for Children Raised by Relatives, 27 J. Soc. & Soc. WELFARE 153,
155 (2000)).
32. Jonathan Todres, Rights Relationships and the Experience of Children Orphanedby AIDS, 41
U.C. DAVIS L. REV. 417, 447 (2007) (noting that "[ejnsuring that orphans have alternative family
care arrangements (either through extended family or a state designated guardian) is an
essential initial step to ensuring the well-being of the child following the loss of parents").
and compelling in many jurisdictions, do not reflect the current reality of

Commonwealth African women's lives. In this context, the state has a
crucial role to play in promoting equality within and across marital
relationships. Although contemporary political realities in the region
suggest some limits on the state's ability to promote equality across
relationships, there is considerable value in laying the foundation for future
advocacy efforts. Indeed, rather than echoing Western feminists' concerns
about state overreaching and intrusiveness in marriage, many African
scholars lament the enervated state response to persistent inequality within
and across intimate, familial relationships.33
I. CHARACTERISTICS OF AFRICAN MARRIAGE
A. Requirements for Marriage
1. Consent and Age Requirements
Marriage under African customary law is often seen as the union

between two families rather than two individuals.3 4 As such, the customary
law of some ethnic groups does not require the individual consent of the
marrying woman.35 In many countries, customary law considers women to
be under the guardianship of their fathers before marriage and of their
husbands after marriage.36 A widow may live under the guardianship of
her husband's customary law heir, such as her husband's brother or a male
33. See, e.g., Jacqueline Asiimwe, One Step Forward, Two Steps Back: The Women's Movement
and Law Reform in Uganda from 1985-2000, in VOICES OF AFRICAN WOMEN, supra note 4, at 52, 60
("The government fears rocking the cultural boat and would rather sacrifice women at the
altar of archaic and discriminatory laws."); Muna Ndulo, The Changing Nature of Customary
Marriage in Zambia, in WOMEN AND LAW IN SUB-SAHARAN AFRICA 3, 17 (Cynthia Grant
Bowman & Akua Kuenyehia eds., 2003) ("In Zambia little attention has been given to the
future of customary law by the government hitherto.... There is an urgent need to study this
problem and plot a course for the future of customary marriage law if it is to develop on sound
lines.").
34. See Fitnat Naa-Adjeley Adjetey, Reclaiming the African Woman's Individuality: The
Struggle Between Women's Reproductive Autonomy and African Society and Culture, 44 AM. U. L.
REV. 1351, 1355 (1995) ("Marriage symbolized the uniting of two families and bolstered the
prestige and security of families.").
35. See CHRISTOPHER AMHERST BYUMA ZIGLRA, RELIGION, CULTURE AND GENDER: A STUDY
OF WOMEN'S SEARCH FOR GENDER EQUALITY IN SWAZILAND 79 (2003) ("A man could marry a
young girl without her consent through arranged marriage, kwendzisa, which only required
mutual agreement of the two families rather than the two persons concerned."); MERCY SIAME
ET AL., BEYOND INEQUALITiES: WOMEN IN ZAMBIA 35 (1998) ("In customary marriage law,
consent between the parties does not include the consent of the bride-to-be."); Karine B6lair,
Unearthing the Customary Law Foundations of "Forced Marriages" During Sierra Leone's Civil War:
The Possible Impact of International Criminal Law on Customary Marriage and Women's Rights in
Post-Conflict Sierra Leone, 15 COLUM. J. GENDER & L. 551, 568 (2006) ("While the consent of the
wife's family is necessary for a valid marriage, that of the wife is not. Customary marriage
often takes place when girls are very young. .. ).
36. See, e.g., PULENG LETUKA ET AL., BEYOND INEQUALITIES: WOMEN IN LESOTHO 20 (1997)
("Under the customary law a woman, before marriage, is under the guardianship of her father.
Upon marriage she transfers to that of her husband. .. )

10 YALE HUMAN RIGHTS & DEVELOPMENT L.J. [Vol. 14
cousin. 37
These limited conceptions of women's legal capacity affect societal
perceptions of women's ability to consent to marriage. 38 In other words,
when a woman is considered a legal minor or otherwise lacks legal capacity
under customary and/or statutory law, it becomes less important to seek
her consent in the context of an impending marriage. 39 As a result, families
sometimes coerce or force women and girls into marriages, sometimes with
much older men.40 In addition to explicit familial coercion, social pressure
to marry is significant and acts as a powerful incentive for girls and women
to accept the marriages arranged by their families. 41
Under the statutory law of most Commonwealth African countries,
both women and men must explicitly consent to the marriage. 42 Nigerian
statutory law, for example, defines marriage as a voluntary contract
37. This is true in patrilineal communities. See id.

38. See Marsha A. Freeman, Measuring Equality: A Comparative Perspective on Women's Legal
Capacity and Constitutional Rights in Five Commonwealth Countries, 5 BERKELEY WOMEN'S L. J.
110, 112-13 (1989) ("Capacity in its more general sense refers to the ability to accept and to
exercise the rights and responsibilities of an adult in one's society. . . . Ultimately, it implies a
full range of choice in one's personal, social, and economic life.").
39. Some countries limit women's ability to enter into contracts and otherwise treat
women as legal minors. See, e.g., U.N. Comm. on the Elimination of Discrimination Against
Women, Combined Fifth and Sixth Periodic Reports of States Parties: Kenya, 101, 165,
CEDAW/C/KEN/6 (Oct. 16, 2006) ("Women who are single must obtain their father's consent
to obtain passports whereas those who are married must obtain their husband's consent ...
That is not extended to men in the same situation."). In Lesotho, the law recognizes a
woman's legal capacity if she is over twenty-one years of age and unmarried or if she is a
widow. LETUKA ET AL., supra note 36, at 20.
40. See SARAH C. MVUDUDU ET AL., LOBOLA: ITS IMPLICATIONS FOR WOMEN'S REPRODUCTIVE
RIGHTS INBOTSWANA, LESOTHO, MALAWI, MOZAMBIQUE, SWAZILAND, ZAMBIA AND ZIMBABWE
27 (2002) ("It is also open to abuse by those who stand to benefit from receiving lobola where
young girls may be forced into early marriages and marriages to older men.").
41. See Margot Lovett, On Power and Powerlessness: Marriage and Political Metaphor in
Colonial Western Tanzania, 27 INT'L J.AFR. HiST. STUD. 273, 289 (1994) ("Pressure [to marry] was
brought to bear on them not only from their own families, but from the wider community as
well.").
42. Typically, statutory marriage law requires the "free and full consent" of both parties to
the marriage, a requirement that is often in conflict with prevailing conceptions of marriage.
Compare U.N. Comm. on the Elimination of Discrimination Against Women, Initial Reports of
States Parties: Namibia, art. 16.1, CEDAW/C/NAM/1 (Feb. 10, 1997) ("Marriage may be
entered into 'only with the free and full consent of the intending spouses."'), with id. (" Iln
many respects these constitutional mandates are inconsistent with existing law and
practices."). See also SWAZ. CONST. art. 27, 2 (2005) ("Marriage shall be entered into only with
the free and full consent of the intending spouses."); U.N. Comm. on the Elimination of
Discrimination Against Women, Combined Initial, Second, Third, Fourth, and Fifth Periodic Reports
of States Parties: Sierra Leone, art. 23.2.1, CEDAW/C/SLE/5 (Dec. 14, 2006) ("Under general
law, marriage is a contract and therefore, the parties (i.e. both man and woman) must agree
before the marriage contract is valid."); U.N. Comm. on the Elimination of Discrimination
Against Women, Periodic Reports of States Parties: Uganda, art. 16, CEDAW/C/UGA/3 (July 3,
2003) ("Article 31 of the Constitution. . . provides for both men and women to enter marriage
of their own free consent.); U.N. Comm. on the Elimination of Discrimination Against Women,
Initial Report of States Parties: Zimbabwe, art. 16.1, CEDAW/C/ZWE/1 (July 20, 1996) ("Without
consent of both spouses a marriage can be annulled."); Mark J. Calaguas et al., Legal Pluralism
and Women's Rights: A Study in Postcolonial Tanzania, 16 CoLUM. J. GENDER & L. 471, 496 (2007)
(discussing the Tanzanian requirement of freely given consent).
2011] Culture, Dissent, and the State 11I
between a man and a woman.43 Although the statute restricts marriage to

opposite-sex couples, it imposes a consent requirement designed to combat
forced or coercive marriage. In addition to statutory consent requirements
applicable to civil marriages, a few countries have enacted legislation
extending the requirements of civil marriage, including consent, to
customary marriages." South Africa's Recognition of Customary Marriages
Act, for example, requires consent of both spouses for legal recognition of
the customary marriage, as well as that of the parents where a party is a
minor. 45 In addition, Ghana's criminal code makes it a criminal offense to
force another to marry.46 In some cases, customary law has evolved to
require the consent of both parties. In Ghana, Namibia, and Sierra Leone,
for example, contemporary customary law requires the consent of both
parties to the marriage. 47
In some African Commonwealth countries, customary law permits
early marriage. 48 Although the marriage may not be consummated until a
girl reaches puberty, families may promise an infant or very young
daughter in marriage. 49 Parents sometimes arrange marriages that involve
a young daughter and a much older man.50 This age difference may
reinforce male dominance within the marriage, limiting women's or girls'
ability to negotiate safe sex practices and contributing to violence within
the marriage.51
43. See Andreas Rahmatian, Termination of Marriage in Nigerian Family Laws: The Need for
Reform and the Relevance of the Tanzanian Experience, 10 INT'L J. L. POL'Y & FAM. 281, 290 (1996)
("Statutory marriage in Nigeria is a voluntarily concluded contractual union between one man
and one woman.").
44. See W. TIcHAGWA, BEYOND INEQUALITIES: WOMEN IN ZIMBABWE 45 (1998) (explaining
that intending spouses over the age of eighteen under Zimbabwe's Customary Marriages Act
no longer need parental consent); Calaguas et al., supra note 42, at 496 (discussing the consent
provision in Tanzania's Law of Marriage Act); Himonga, supra note 11, at 264 (noting that in
South Africa, "both parties to the marriage are now required to consent to their marriage.").
45. Himonga, supra note 11, at 264 (2004).
46. Bernice Sam, Discrimination in the Traditional Marriage and Divorce System in Ghana:
Looking at the Problem from a Human Rights Perspective, in VOICES OF AFRICAN WOMEN, supra
note 4, at 205, 206.
47. See id.; see also U.N. Comm. on the Elimination of Discrimination Against Women,
Combined Initial, Second, Third, Fourth, and Fifth Periodic Reports of State Parties: Sierra Leone, art.
23.2.2, CEDAW/C/SLE/5 (Dec. 14, 2006); U.N. Comm. on the Elimination of Discrimination
Against Women, Initial Reports of the State Parties:Namibia, art. 16.3, CEDAW/C/NAM/1 (Feb.
10, 1997).
48. See Athena D. Mutua, Gender Equality and Women's Solidarity Across Religious, Ethnic,
and Class Differences in the Kenyan Constitutional Review Process, 13 WM. & MARY J. WOMEN & L.
1, 27 (2006).
49. See Elizabeth Warner, Behind the Wedding Veil: Child Marriage as a Form of Trafficking in
Girls, 12 AM. U. J. GENDER Soc. POL'Y & L. 233, 237 (describing the prevalence and practice of
child marriage internationally and in Africa).
50. According to one women's rights organization in Southern Africa, "From the outset
such relationships involve significant power imbalances from which it is extremely difficult
and rare for a girl to carve out her own autonomy. This places the woman in a position of
subservience with rights no less than those of labourers." MVUDUDU ET AL., supra note 40, at 21.
51. See, e.g., Naana Otoo-Oyortey & Sonita Pobi, Early Marriage and Poverty: Exploring Links
and Key Policy Issues, in GENDER, DEVELOPMENT, AND MARRIAGE 42, 47 (Caroline Sweetman ed.,
2003) ("The unequal power relations that exist between a young bride and her relatively older

Where early marriage occurs, it often causes serious health

consequences for girls who become pregnant at a young age. 52 Girls
between the ages of ten and fourteen are five to seven times as likely to die
from childbirth as their counterparts who are over twenty years of age.53
One of the primary health risks for girls who marry and become pregnant
at an early age is obstructed labor due to small pelvic bones. Obstructed
labor can result in sepsis, hemorrhage, obstetric fistula, and deathM
Many Commonwealth African countries have enacted legislation to
regulate the age at which individuals may enter into marriage.55 A number
of countries require both boys and girls to be eighteen or older to marry. 56
Other countries have different marriage age requirements for boys and
girls. In Tanzania, for example, the Law of Marriage Act, which applies to
statutory, customary, and religious marriages, allows boys to marry at age
eighteen and girls to marry at age fifteen.57 In Uganda, marriage age
and more experienced husband mean that men often have total control over how, when, and
where sexual intercourse takes place.").
52. See Eno-Obong Akpan, Early Marriage in Eastern Nigeria and the Health Consequences of
Vesico-Vaginal Fistulae (VVF) Among Young Mothers, in GENDER, DEVELOPMENT, AND
MARRIAGE, supra note 51, at 70, 73 ("The large majority of VVF sufferers are young (usually
between 12 and 20 years of age), poor, uneducated, rural women whose access to medical
facilities is limited. . . . Typically, the sufferer experiences the damage during prolonged
labour, often caused by a lack of physical maturity on the part of the mother."); Sharon
LaFraniere, Nightmare for African Women: Birthing Injury and Little Help, N.Y. TIMES, Sept. 28,
2005, at Al.
53. Nawal M. Nour, Health Consequences of Child Marriage in Africa, 12 EMERGING
INFECTIOUS DISEASES 1644,1646 (2006).
54. Id.
55. See, e.g., U.N. Comm. on the Elimination of Discrimination Against Women, Sixth
Periodic Report of States Parties: Nigeria, art. 101, CEDAW/C/NGA/6 (Oct. 5, 2006) (discussing
Nigeria's Child's Rights Act which "stipulates eighteen years as the minimum age for
marriage and betrothal"); U.N. Comm. on the Elimination of Discrimination Against Women,
Combined Second and Third Periodic Reports of States Parties: Namibia, art. 68,
CEDAW/C/NAM/2-3 (Sept. 2,2005) ("The Married Persons Equality Act makes eighteen (18)
years the age of consent for entry into civil marriage for both sexes. . . ."); BENEDITA DA SILVA
ET AL., BEYOND INEQUALITIES 2005: WOMEN IN MOZAMBlQUE 44 (2006) (discussing the new
Family Law, which increases the minimum age of marriage from fifteen for girls and sixteen
for boys to eighteen years for both boys and girls); Esther Damalie Naggita, Why Men Come
Out Ahead: The Legal Regime and the Protection and Realization of Women's Rights in Uganda, 6 E.
AFR. J. PEACE & HUM. RTS. 34, 43 (2000); Manisuli Ssenyonjo, Women's Rights to Equality and
Non-Discrimination: Discriminatory Family Legislation in Uganda and the Role of Uganda's
Constitutional Court, 21 INT'L J.L. POL'Y & FAM. 341, 357 (2007).
56. See U.N. Comm. on the Elimination of Discrimination Against Women, Sixth Periodic
Report of States Parties: Nigeria, 101, CEDAW/C/NGA/6 (Oct. 5, 2006); U.N. Comm. on the
Elimination of Discrimination Against Women, Combined Second and Third Periodic Reports of
States Parties: Namibia, art. 68, CEDAW/C/NAM/2-3 (Sept. 2, 2005); U.N. Comm. on the
Elimination of Discrimination Against Women, Initial PeriodicReport of States Parties: Zimbabwe,
art. 60, CEDAW/C/ZWE/1 (July 20, 1996) ("Women over the age of 18 years can now enter
into marriage without the consent of their fathers or guardians and men and women have the
same right to enter into marriage.").
57. See U.N. Comm. on the Elimination of Discrimination Against Women, Concluding
Observations of the Committee on the Elimination of DiscriminationAgainst Women: United Republic
of Tanzania, art. 146, CEDAW/C/TZA/CO/6 (July 16, 2008) ("While noting that the proposed
amendments to the Marriage Act purports [sici to establish the legal minimum age for both
girls and boys at 18 years instead of 15 years for girls and 18 years for boys as it stands under
requirements differ under statutory, customary, and religious law.58 In

addition to consent of the spouses, some countries require parental consent,
depending on the age of the spouses. 59 In Ghana, for example, the
Children's Act of 1998 established eighteen as the minimum age for
marriage, but it allows children between sixteen and eighteen years old to
wed with their parents' consent. 60
2. Bridewealth or Lobola
Bridewealth, sometimes called bride price or lobola, is the payment from

a husband's family to a wife's family in recognition of the couple's
marriage.61 Practiced primarily by patrilineal communities, lobola typically
consists of two stages: small, introductory payments that initiate the
marriage process and the "main ceremony where major payments are
made." 62
Although the particular requirements for lobola and the name given to
the practice differ among ethnic groups, there are some similarities across
communities. For example, in many communities, lobola represents "the
transfer of a woman's reproductive capacity from her natal family to the
man's family." 63 Indeed, so strong is this connection between lobola and
reproduction that "where the lobola has been paid and there are no children
born of that marriage, traditionally the family of the woman is obliged to
find a replacement for the bride or refund the lobola."64
Over time, the meaning of the custom has changed. It has "lost much
of its traditional and spiritual significance and has become highly
section 13 of the Marriage Act, the Committee is concerned at the delay in passing such
amendment.").
58. Although the civil statute governing marriage stipulates that the parties to the
marriage must be twenty-one years old, the Hindu marriage statute and the Customary
Decree, which regulates customary marriage, require girls to be aged sixteen or over and boys
to be eighteen or over. FAREDA BANDA, WOMEN, LAW AND HUMAN RIGHTS: AN AFRICAN
PERSPECIVE 101 (2005). For marriages under Islamic law, there is no minimum age for
marriage and girls as young as nine years old have been married. Id. The Domestic Relations
Bill, which has languished in the Ugandan Parliament on and off for the last thirty-plus years,
would establish eighteen as the minimum age for marriage for both men and women. Mary
Karugaba, Urgently Pass Domestic Relations Bill - Dr. Ntiro, NEW VISION, Jan. 25, 2009,
http://www.newvision.co.ug/D/9/31/669293.
59. See, e.g., U.N. Comm. on the Elimination of Discrimination Against Women, Third and
Fourth Periodic Reports of States Parties: Zambia, art. 64, CEDAW/C/ZAM/3-4 (Aug. 12, 1999);
U.N. Comm. on the Elimination of Discrimination Against Women, Initial Report of States
Parties: Zimbabwe, art. 60, CEDAW/C/ZWE/1 (July 20, 1996); Calaguas et al., supra note 42, at
496; Sope Williams, Nigeria, Its Women and International Law: Beyond Rhetoric, 4 HUM. RTS. L.
REV. 229, 239 (2004).
60. Sam, supra note 46, at 206.
61. MVUDUDU ET AL., supra note 40, at 13 (defining lobola as "the process where the family
of the man makes payments to the family of the woman in the process of marriage]").
62. Id.
63. Id.at 15.
64. Id.at 16.

commercialized . . . ."65 Lobola "is now seen as the purchase of a wife." 66 In

Ghana, "families of prospective brides demand huge sums of money in
addition to other gifts." 67
Under customary law, lobola is often a requirement for a valid
customary marriage. 68 In some countries, such as Swaziland, the practice,
while important, is not necessary for a valid customary marriage. 69 Within
some ethnic groups in Nigeria and Zambia, on the other hand, lobola is a
prerequisite for a valid customary marriage.70 Similarly, Islamic law
requires a payment from the husband's family. For example, in
Mozambique, mahari (contract money) must be paid to the bride before the
ceremony may occur.7 '
Statutory law does not require the payment of lobola as a prerequisite to
a valid civil marriage. 72 However, although not legally required, statutory
law in Tanzania provides for the option of paying bride price. 3 And even
if couples choose to marry under statutory law, they sometimes incorporate
traditional customs such as lobola.74 The persistence of lobola payment, in
65. Id. at 26.

66. Sam, supra note 46, at 212.
67. Id.
68. See U.N. Comm. on the Elimination of Discrimination Against Women, Initial Reports of
States Parties: Namibia, art. 16.1, CEDAW/C/NAM//1 (Feb. 10, 1997); MVUDUDU ET AL., supra
note 40, at 9; GEORGE 0. NDEGE, CULTURE AND CUSTOMS OF MOZAMBIQUE 80 (2007); Pamela 0.
Davies, Marriage, Divorce, and Inheritance Laws in Sierra Leone and their Discriminatory Effects on
Women, HUM. RTs. BRIEF, Fall 2005, at 17, 19; Tracy E. Higgins et al., Gender Equality and
Customary Marriage: Bargaining in the Shadow of Post-Apartheid Legal Pluralism, 30 FORDHAM
INT'L L.J. 1653, 1673 (2007).
69. See MVUDUDU ET AL., supra note 40, at 20; TICHAGWA, supra note 44, at 45.
70. See U.N. Comm. on the Elimination of Discrimination Against Women, Third and
Fourth Periodic Reports of States Parties: Zambia, art. 65, CEDAW/C/ZAM/3-4 (Aug. 12, 1999)
("Payment of lobola is not a legal requirement. However, for marriages under customary law in
patrilineal groups, it is one of the essential elements for establishing the existence of a
marriage."); Rahmatian, supra note 43, at 285.
71. See NDEGE, supra note 68, at 101-02; Naggita, supra note 55, at 45 (explaining that the
Mohammedan Marriage and Divorce Act provides for customary practices, including
payment of mahari).
72. See, e.g., U.N. Comm. on the Elimination of Discrimination Against Women, Combined
Initial and Second Periodic Reports of States Parties: Mozambique, art. 65, CEDAW/C/MOZ/1-2
(Nov. 14, 2005); U.N. Comm. on the Elimination of Discrimination Against Women, Initial
Report of States Parties: Zimbabwe, art. 60, CEDAW/C/ZWE/1 (July 20, 1996); SIAME FT AL.,
supra note 35, at 41 ("Ordinance marriage . . . . is validated not by the consent of a woman's
parents and by marriage payments but by compulsory registration and other civil procedures
as stipulated by the Marriage Act.").
73. See U.N. Comm. on the Elimination of Discrimination Against Women, Concluding
Comments for the Combined Fourth, Fifth and Sixth Periodic Report: United Republic of Tanzania, art.
146, A/63/38 (July 11, 2008).
74. See, e.g., U.N. Comm. on the Elimination of Discrimination Against Women, Third and
Fourth Periodic Reports of States Parties: Zambia, 65, CEDAW/C/ZAM/3-4 (Aug. 12, 1999)
(noting that "couples married under statutory law still comply with customary marriage
requirements."); U.N. Comm. on the Elimination of Discrimination Against Women, Initial
Reports of States Parties: Namibia, art. 16.1, CEDAW/C/NAM//1 (Feb. 10, 1997) ("[Clivil
marriages often incorporate customs usually associated with traditional marriage, such as
bride price, thus producing an intertwining of the two systems."); SIAME FT AL., supra note 35,
at 42 ("Payment of lobola is normal in ordinance marriages.").
both customary and statutory marriages, frustrates some women's rights

activists. 75 A number of African feminists and others lament the customary
practice, noting that it contributes to women's subordination within the
family.76 Some feminists have argued that "lobola demeans the status of
77
women, making them servants, rather than partners, in marriage." But
despite calls for the practice's statutory prohibition, lobola continues to play
a significant role in Commonwealth African marriages.
3. Monogamy/Polygamy
Customary law in most Commonwealth African countries allows

polygamy.78 Although polygamy is widespread within many of these
countries, some countries attempt to regulate the practice by requiring legal
registration of customary marriages or by requiring the husband to gain
approval from an existing wife or from the court for subsequent
marriages. 79 For example, in Tanzania, the Law of Marriage Act allows a
first wife to contest a subsequent marriage.80 South Africa requires a party
to apply to the court for approval of polygamous marriage to ease the later
distribution of property.81 As with customary law, Islamic law permits
polygamous marriages. 82 Several countries legally recognize polygamous
75. See, e.g., TANIA FLOOD ET AL., BEYOND INEQUALITIES: WOMEN IN SOUTH AFRICA 31
(1997) (referring to the argument "that lobola demeans the status of women, making them
servants rather than partners in marriage"); Catherine Harries, Daughters of Our Peoples:
InternationalFeminism Meets Ugandan Law and Custom, 25 COLUM. HUM. RTS. L. REv. 493, 517
(1994) (remarking that "[tihere is currently a movement growing in Uganda, pushed by both
male and female urban Elites, to abolish bride price.").
76. See, e.g., Margaret C. Oguli Oumo, Property in Marriage Relations: Its Legal Implications
for Women in Uganda, in VOICES OF AFRICAN WOMEN, supra note 4, at 243; Sam, supra note 46, at
212.
77. FLOOD ET AL., supra note 75, at 31.
Fourth and Fifth Periodic Reports of States Parties: Nigeria, art. 16.3, CEDAW/C/NGA/4-5 (Apr.
28, 2003); U.N. Comm. on the Elimination of Discrimination Against Women, Initial Report of
States Parties:South Africa, art. 106, CEDAW/C/ZAF/1 (Feb. 25, 1998); ZAKHE HLANZE & LOLO
MKHABELA, BEYOND INEQUALITIES: WOMEN IN SWAZILAND, 34 (1998); IIPINGE & LEBEAU, supra
note 13, at 32; Davies, supra note 68, at 18 ("Under customary law, a man can marry as many
wives as he desires and can afford.").
79. See infra notes 80-81.
80. See Calaguas et al., supra note 42, at 497 ("With regard to polygamous unions, the [Law
of Marriage Act] gives the current wife (or wives) the right to object to additional spouses
under certain circumstances: if the husband is of limited means and the marriage would likely
cause hardship to the family, or if the would-be wife is 'of notoriously bad character,' is
inflicted with a communicable disease, or is 'likely to introduce grave discord into the
household."' (citations omitted)).
81. See Higgins et al., supra note 68, at 1684 (referring to Section 7(6) of South Africa's 1998
Recognition of Customary Marriages Act).
82. See U.N. Comm. on the Elimination of Discrimination Against Women, Combined
Fourth and Fifth Periodic Reports of States Parties: Nigeria, art. 16.3, CEDAW/C/NGA/4-5 (Apr.
28, 2003); NDEGE, supra note 68, at 79 (" [Piolygyny was accepted and widely practiced among
Moslems and so was the norm . .. across the predominantly Moslem Mozambican society.");
Ssenyonjo, supra note 55, at 349 ("Apart from customary marriages, Ugandan law recognizes
Islamic polygynous marriages. These are governed by the Marriage and Divorce of

marriages within religious marriage law.83 Islamic law limits a man to no

more than four wives.r
In the majority of Commonwealth African countries, statutory marriage
law prohibits polygamy.85 Despite statutory requirements for monogamy
in civil marriages, some men contract a civil marriage and subsequently
marry additional wives under customary law. 86 Ugandan scholar Margaret
Oguli Oumo observes, "Polygamy is a feature in the African family system
and is considered a symbol of wealth.... Polygamy lowers the status of a
wife relative to her husband. . .. The husband becomes the master and his
wives compete for his favors.87
Although most civil marriage statutes prohibit polygamy, it
nevertheless still occurs. In many Commonwealth African countries,
polygamy is common in customary and Islamic marriages. In some
instances, when African feminists have advocated for the abolition of
polygamy, they have encountered vociferous resistance from those who
believe the practice is an important marker of cultural identity.88
4. Regulation of Sexuality
Custom and tradition operate as a mechanism of control over women's

sexuality in the context of marriage. 89 Families and communities police the
boundaries of marriage through several forms of social control targeted at
women and girls. The methods of controlling women's sexuality and
reproductive autonomy include, inter alia, female genital mutilation (FGM),
virginity testing, and "curative" or "corrective" rape.
Mohammedans Act.").
83. See U.N. Comm. on the Elimination of Discrimination Against Women, Second and
Third Periodic Reports of States Parties: Nigeria, 63, CEDAW/C/NGA/2-3 (Feb. 26, 1997) ("Pure
polygamy, that is marriage of two or more wives under Customary or Islamic Law is legal and
recognized."); Ssenyonjo, supra note 55, at 349 ("Apart from customary marriages, Ugandan
law recognizes Islamic polygynous marriages.").
84. See Davies, supra note 68, at 18; Rahmatian, supra note 43, at 286 (noting that "[a] man
has the right to marry up to four women if he is able to treat them with perfect equality").
85. See, e.g., U.N. Comm. on the Elimination of Discrimination Against Women, Concluding
Comments of the Committee on the Elimination of Discrimination Against Women: Mozambique, art.
22, CEDAW/C/MOZCO/2 (fune 11, 2007); U.N. Comm. on the Elimination of Discrimination
Against Women, Combined Fourth and Fifth Periodic Reports of States Parties: Nigeria, art. 16.1,
CEDAW/ C/NGA/4-5 (Apr. 28, 2003); IJPINGE & LEBEAU, supra note 13, at 32; Williams, supra
note 59, at 24041.
86. Oguli Oumo, supra note 76, at 243,247.
87. Id. at 247-48.
88. See Bond, Gender, Discourse, supra note 12, at 541 (describing the controversy
surrounding polygamy in the drafting of the Protocol to the African Charter on Human and
Peoples' Rights on the Rights of Women in Africa).
89. Adjetey, supra note 34, at 1356 (arguing that " [mjale dominated societies employ
customary law to hold women captive to their reproductive functions.").
a) FGM
Female genital mutilation (FGM) refers to the process of "intentionally

alter[ing] or injur[ing] female genital organs for non-medical reasons." 90
The World Health Organization divides FGM into four categories:
clitoridectomy (Type 1), excision (Type II), infibulation (Type III), and other
procedures involving genital cutting for non-medical reasons (Type IV). 91
Infibulation, which involves "the removal of the clitoris, labia minora, and
parts of the labia majora," is the most severe form of FGM. 92 The WHO
estimates that 92 million African girls aged ten and above have undergone
FGM.93 Prevalence rates of FGM vary significantly by country: 78.3% in
Gambia, 3.8% in Ghana, 27.1% in Kenya, 58.2% in Liberia, 85.2% in Mali,
29.6% in Nigeria, 14.6% in Tanzania, and 0.8% in Uganda. 94 The health
consequences of FGM can be severe or fatal and may include: "acute pain,
post-operative shock, urine retention, bladder infection, . . . hemorrhaging,
tetanus, septicemia,"9 5 and transmission of the HIV virus through
unsanitary surgical tools. 96
Communities that practice FGM do so for a variety of reasons. FGM
stems from gender inequality and "represents society's control over
women." 97 Some view FGM as a way to restrict women's sexuality by
eliminating or "reducing their sexual fulfillment." 98 These families believe
90. WORLD HEALTH ORG., Female Genital Mutilation (Feb. 2010),

http://www.who.int/mediacentre/factsheets/fs241/en/.
91. CTR. FOR REPROD. RTS., FEMALE GENITAL MUTILATION: A MATTER OF HUMAN RIGHTS 8
(2d ed. 2006). The WHO defines the categories as follows:
Clitoridectomy: partial or total removal of the clitoris and .. . in very rare cases, only
the prepuce ....
Excision: partial or total removal of the clitoris and the labia minora, with or without
excision of the labia majora . . . .
Infibulation: narrowing of the vaginal opening through the creation of a covering
seal. The seal is formed by cutting and repositioning the inner, or outer, labia with
or without removal of the clitoris.
Other: all other harmful procedures to the female genitalia for non-medical
purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.
WORLD HEALTH ORG., supra note 90.
92. Adjetey, supra note 34, at 1362.
93. Female Genital Mutilation, supra note 90.
94. These figures are from 2004 to 2009, depending on the country. WORLD HEALTH ORG.,
Female Genital Mutilation and Other Harmful Practices,
http://www.who.int/reproductivehealth/topics/fgm/prevalence/en/index.html (last
visited Feb. 21, 2011).
95. Adjetey, supra note 34, at 1362.
96. See Patricia A. Broussard, The Importance of Female Genital Mutilation to the West: The
Cruelest Cut of All, 44 U.S.F. L. REV. 787, 791 (2010); Kelleen O'Fallon, Matter of A-T : Opening the
Doorfor Gender as a ParticularSocial Group in Asylum Applications, 9 U. MD. L. J. RACE, RELIGION,
GENDER & CLASS 397, 400 (2009).
97. WORLD HEALTH ORG. ET AL., ELIMINATING FEMALE GENITAL MUTILATION: AN
INTEIRAULNCY STAT EMENT 5 (2008), available at
http://whqlibdoc.who.int/publications/2008/9789241596442.eng.pdf [hereinafter
INTERAGENCY STATEMENT].
98. CTR. FOR REPROD. RTS., supra note 91, at 8.

that this increases the chance that a young woman will remain a virgin
before marriage. 9 Virginity at marriage is an entrenched social value.100
Many communities, in fact, treat women's virginity as a prerequisite for
marriage.101 Families have a financial incentive to ensure a daughter's
virginity at marriage, as virginity may affect the family's negotiations over
the amount of bridewealth it will receive at the time of her marriage. 0 2
There are also several historical-institutional reasons for the practice.
Women who have undergone FGM and view it as an important marker of
their own identity often support the practice.103 The mostly female
practitioners who charge fees for performing FGM also have an economic
incentive to continue the practice.104 In communities where FGM is
common, there tends to be strong social pressure for families to choose
FGM for their daughters. 0 5 Although religious texts do not encourage the
practice, some religious leaders support FGM as a religious act.106 Other
religious leaders openly oppose the practice.107
Some countries have enacted laws prohibiting FGM, but many of these
have been criticized as ineffective.106 It is widely recognized among non-
governmental organizations that criminal prohibitions alone will
accomplish little.'09 Legal sanctions must be accompanied by widespread
public education campaigns and broader policy initiatives designed to
enhance women's autonomy in matters related to sexual and reproductive
health."10 One strategy that has enjoyed success in parts of Kenya, for
99. See, e.g., Zsaleh E. Harivandi, Invisible and Involuntary: Female Genital Mutilation as a
Basisfor Asyl um, 95 CORNELL L. REv. 599, 611 (2010).
100. See generally Erika R. George, Virginity Testing and South Afica's HIV/AIDS Crisis:
Beyond Rights Universalism and Cultural Relativism Toward Health Capabilities, 96 CAL. L. REV.
1447 (2008).
101. Patricia A. Armstrong, Female Genital Mutilation: The Move Toward the Recognition of
Violence Against Women as a Basis for Asylum in the United States, 21 MD. J. INT'L L. & TRADE 95,
97-98 (1997) ("Because several African tribes prescribe virginity as a prerequisite for marriage,
supporters believe FGM protects a woman from her own desire to have promiscuous sexual
intercourse.").
102. George, supra note 100, at 1454 (describing how "[a] potential bride's virginity was a
factor in the negotiations between a bride's parents and her future in-laws to determine what
amount of wealth was to be transferred from the groom's family to the bride's family . .
103. WORLD HEALTH ORG., supra note 97, at 7.
104. See, e.g., EFUA DORKENOO, CUTTING THE ROSE: FEMALE GENITAL MUTILATION 50 (1994)
("Part of the reason for the continuation of the practice of FGM lies in the fact that it is an
irreplaceable source of revenue for excisors.").
105. See WORLD HEALTH ORG., supra note 97, at 5. ("Where female genital mutilation is
widely practiced, it is supported by both men and women, usually without question, and
anyone departing from the norm may face condemnation, harassment, and ostracism.").
106. See id. at 6.
107. See id.
108. Annotated Legal Bibliography on Gender, 14 CARDOZO J. L. & GENDER 819, 848 (2008)
(noting that "[rIegional laws have also been ineffective because they do not have adequate
procedures to monitor the violation of the crime and are rarely enforced.").
109. See, e.g., CIR. FOR REP'ROD. RTs., supra note 91, at 28-29.
110. For a discussion of how legal sanctions might interact with other methodologies, see,
for example, Rebecca J. Cook, International Protection of Women's Reproductive Rights, 24 N.Y.U.
J. INT'L L. & POL. 645, 682 (1992).
example, is the promotion of alternative rites of passage for girls."
b) Virginity Testing and "Curative Rape"
Another way of restricting sexual behavior prior to marriage is through

virginity testing, which has enjoyed a resurgence in South Africa.
"Virginity testing, a prenuptial custom traditionally conducted just prior to
marriage, refers to the examination of females to ascertain whether or not
they are sexually chaste."11 2 In South Africa, some have embraced virginity
testing not only as a way to police morality among young women but also
as a tool to combat the spread of HIV/AIDS.113 Misconceptions about
virginity further complicate the issue. For example, "[sjome South African
researchers attribute the increase in sexual violence against young girls who
are presumed to be virgins to a belief, gaining credence in some
communities, that sexual intercourse with a virgin can 'cleanse' men with
HIV or AIDS of the disease."" 4 Communities often label those who fail the
tests as "unmarriageable." 1' 5 The emotional and physical risks for girls
who fail the tests are significant, with many exposed to shame and
6
ostracism within the community and abuse within their families." On the
other hand, some South African feminists oppose the practice as a violation
of young women's privacy and equality rights." 7
Human rights organizations in South Africa also report that lesbians in
that country are targeted for so-called "curative" or "corrective" rape.118
An Action Aid report documents instances of such rape, noting that "only
one in five reported rapes ends up in court, with just over 4% of these cases
resulting in a conviction."119 "Curative" rape represents a violent and
extreme example of enforced heteronormativity. The rape is designed to
"cure" homosexuality and make the victim "marriageable." Each of these
strategies for regulating sexuality harms women and does so largely in the
name of marriage.
111. CTR. FOR REPROD. RTS., supra note 91, at 40.

112. George, supra note 100, at 1449.
113. Id. at 1447-48.
114. Id. at 1461.
115. Id. at 1462.
116. Id.
117. Id. at 1449-50 (describing the "politically charged" nature of the debate over virginity
testing in South Africa as a clash between "human rights universalism and cultural
relativism").
118. For more information on what is referred to as "curative" or "corrective" rape, see
HUMAN RIGHTS WATCH & THE INT'L GAY & LESBIAN HUMAN RIGHTS COMM'N, MORE THAN A
NAME: STATE-SPONSORED HOMOPHOBIA AND ITS CONSEQUENCES IN SOUTHERN AFRICA 193
(2003), available at http://www.hrw.org/sites/default/files/reports/safriglhrc3O3.pdf
[hereinafter HUMAN RIGHTS WATCHI.
119. ACTION AID, HATE CRIMES: THE RISE OF "CORRECTIVE" RAPE IN SOUTH AFRICA 13
(2009), available at http://www.actionaid.org.ul/101756/hatescrimes the rise of corrective
rape in southtafrica.html.

B. Rights Within Marriage
1. Property
Land is the most important form of property in many parts of

Commonwealth Africa.120 Because many African communities are
agrarian, a lack of access to property "makes women economically
dependent and thwarts their efforts at achieving economic
independence." 121 In Botswana, many unmarried women still rely on their
fathers or brothers for access to land or cattle.122 Even when married
women contribute to the purchase of land, they "rarely hold matrimonial
land as joint owners with their spouses." 123 Customary law in Kenya
permits women to farm land but not to own it or make decisions as to its
maintenance or disposal.124 Customary law in Malawi allows women's
ownership of so-called "feminine" property, such as cooking utensils, but
not "masculine" property, such as land or vehicles.125 Similarly, customary
law in Zimbabwe restricts women's ownership to moveable property, such
as cash or livestock. 126 Despite this limited property right, "most moveable
property acquired during the course of a customary marriage belongs to the
husband."127
In some countries, statutory law has provided improved access to
property within marriage. For example, in 1996 Botswana amended its
Deeds Registry Act, allowing women to execute deeds and other
documents without their husbands' consent.128 Tanzania's Law of Marriage
120. See Florence Butegwa, Mediating Culture and Human Rights in Favour of Land Rights for
Women in Africa: A Framework for Community-Level Action, in CULTURAL TRANSFORMATION AND
HUMAN RIGHTS IN AFRICA 108,110 (Abdullahi A. An-Na'im ed., 2002) ("[W]omen increasingly
realize that lack of access to land is the major determinant of poverty and social status both in
rural and urban areas.").
121. Akua Kuenyehia, Women, Marriage, and Intestate Succession in the Context of Legal
Pluralism in Africa, 40 U.C. DAVIS L. REV. 385, 387 (2006); see also Aparna Polavarapu, Procuring
Meaningful Land Rights for the Women of Rwanda, 14 YALE HUM. RTs. & DEV. L.J. 105 (2011)
(identifying the legal, structural, and historical obstacles to equal rights in land ownership).
122. ELSIE M. ALEXANDER ET AL., BEYOND INEQUALITIES 2005: WOMEN IN BOTSWANA 38
(2005) ("'[I]t is still difficult for single women to access land due to the customary rules and
practices that some Land Board officials still implement.").
123. Bosire Maragia, Gender Struggles in Homosocial Settings: Reconstructing Gender and
Social Equity for Sustainability in Post-Colonial Societies, 16 AM. U. J. GENDER SOC. POL'Y & L. 335,
349 (2008).
124. Elin Henrysson & Sandra F. Joireman, On the Edge of the Law: Women's Property Rights
and Dispute Resolution in Kisii, Kenya, 43 LAW & SOC'Y REV. 39,43 (2009).
125. See United Nations Committee on the Elimination of Discrimination Against Women
[CEDAW], Combined Second, Third, Fourth, and Fifth Periodic Report of States Parties: Malawi, 81,
CEDAW/C/MWI/2-5 (June 28, 2004) ("For all the marriages however, property rights are
feminised or masculinised. Cooking utensils, for example, are for women while the other
property such as land and cars are usually for men.").
126. CTR. FOR REPROD. LAW AND POLICY, WOMEN OF THE WORLD. ANGLOPHONE AFRICA 142
(1999) [hereinafter ANGLOPHONE AFRICA].
127. Id.
Act provides some protection for women's property interests in the marital
home by prohibiting alienation by one spouse during the existence of the
marriage. 129 Similarly, Namibia's Married Persons Equality Act, which
applies only to marriages contracted under civil law, requires couples to
register immovable property in both spouses' names.1 30 The Married
Women's Property Act in Ghana ensures the right of women married under
the civil Marriage Ordinance to own property in their own names. 131
Even when statutory law permits women's ownership of land or other
property, however, some obstacles remain. For example, when Kenya
passed its Registered Lands Act, which permits women to register title to
land, "men rushed to register land, and the passage of the statute did not
permit subsequent alteration of the register, thereby precluding women
from changing the register to accommodate their interests."132 Despite
some statutory interventions in favor of women's marital property rights,
traditional patriarchal attitudes toward women's role within the family
make it difficult for women to fully enjoy those rights.
2. Non-violence
As in most of the world, in Commonwealth Africa violence against

women in the family occurs with startling regularity. "Any inquiry into the
place of violence in African life runs the risk of reproducing a stereotypical
image of a homogenous and 'uncivilized' part of the world that has helped
to justify Western racism, colonialism, and paternalism." 133 Nevertheless,
violence against women occurs in Africa, as in other parts of the world, and
must be examined. Although communities differ widely in their attitudes
toward violence against women, detailed case studies and specific
comparisons across borders are simply beyond the scope of this Article.
Partly a result of the normalization of violence within the family, 134 the
35
vast majority of familial gender-based violence goes unreported.
Statistics indicate that physical abuse, including marital rape, is common in
African marriages. 136 In Ghana, one third of women surveyed reported
Initial, Second, and Third Periodic Reports of States Parties: Botswana, art. 51, CEDAW/C/BOT/3
(Oct. 20, 2008).
129. ANGLOPHONE AFRICA, supra note 126, at 123.
130. IIPINGE & LEBEAU, supra note 13, at 10.
131. Fenrich & Higgins, supra note 5, at 283.
133. Scott London, Domestic Violence: Sub-SaharanAfrica, in 2 ENCYCLOPEDIA OF WOMEN &
ISLAMIC CULTURES, supra note 10, at 126.
134. The Malawian saying "chikwati ndikupilira," or "marriage demands perseverance,"
conveys the notion that a couple should remain together regardless of the existence of abuse.
Rose Chisowa, Why Women and the Girl Child?, in GENDER BASED VIOLENCE: TWENTY THREE
STORIES 30, 32 (Kamanga Zulu ed., 2008).
135. See, e.g., Alfred Banda, The Silence of a Battered Wife, in GENDER BASED VIOLENCE, supra
note 134, at 25, 29 (" [O~nly 4% of the total victims reported theft cases to police because they
do not view abuse as illegal and find it not serious enough to warrant police intervention").
136. See, e.g., Mumbi Machera, Domestic Violence in Kenya: A Survey of Newspaper Reports, in

being hit, slapped, or otherwise physically abused by a current or recent

partner.1 37 According to another study, over 49% of women in Malawi have
been victims of domestic violence' 38 Almost 60% of women surveyed
reported sexual abuse by a partner at some point in their lives.139 Of that
group, only 4% reported the abuse to the police. 140
Commentators differ on the causes of domestic violence in
Commonwealth Africa.141 There is, however, an emerging consensus that
unequal power relations between men and women are a core factor in
gender-based violence in the home.142 Many men attempt to justify marital
violence by suggesting that their wives have not lived up to their marital
obligations. Some suggest, for example, that a woman's behavior in the
home may lead to abuse if she is not "cautious and calm"143 (behavior
traditionally expected from a wife), or if she does not fulfill her customary
marital duties such as "cooking, cleaning, and washing."1 44 These
"justifications" for violence reflect rigid gender-based roles within the
family.
Although it is common for the general penal code to criminalize
assault, few African Commonwealth countries have enacted specific
domestic violence legislation.145 Marital rape is not considered a crime in
many Commonwealth African countries.146 In Malawi, for example,
MEN, WOMEN AND VIOLENCE 1997, 27, 47 (Felicia Oyekanmi ed., 1997); Chi Mgbako et al., We
Will Still Live: Confronting Stigma and Discrimination Against Women Living with HIV/AIDS in
Malawi, 31 FORDHAM INT'L L.J. 528, 545 (2008) (referring to a study that "indicated that three-
quarters of all the women surveyed had been forced to have sex by their intimate partners at
least once.").
137. Marilyn Aniwa, Prevalence, in BREAKING THE SILENCE & CHALLENGING THE MYTHS OF
VIOLENCE AGAINST WOMEN AND CHILDREN IN GHANA 50, 65 (Dorcas Coker-Appiah & Kathy
Cusack eds., 1999) [hereinafter BREAKING THE SILENCE].
138. Banda, supra note 135, at 29.
139. Id.
140. Id.
141. In Ghana, for example, one commentator suggests that alcohol, job status, educational
status, stress, poverty, gender roles, relationships with in-laws and other members of the
family, and conflict over children, inter alia, are all factors in marital conflict. Henrietta Abane,
Towards Research into Wife Battering in Ghana: Some Methodological Issues, in MEN, WOMEN AND
VIOLENCE, supra note 136, at 16, 20.
142. See, e.g., Valorie K. Vojdik, Conceptualizing Intimate Violence and Gender Equality: A
ComparativeApproach, 31 FORDHAM INT'L L.J. 487,495 (2008).
143. Abane, supra note 141, at 16 ("In Ghana, wife beating is a man's way of teaching the
wife a lesson, and even women have shown less sympathy for victims of wife beating who,
according to custom, should learn to be cautious and calm.").
144. Kathy Cusack, Defining Violence, in BREAKING THE SILENCE, supra note 137, at 1, 15
("Failure of a woman or child to fulfill socially defined roles or expectations were [sic] usually
used to describe disobedience.").
145. Botswana, for example, lacks a law specifically prohibiting gender-based violence.
WOMEN & LAW IN S. AFR. RESEARCH TRUST, No SAFE PLACE: INCEST AND DEFILEMENT IN
BIOTSWANA 19 (2002). Similarly, the Gambia has no specific laws that deal with domestic
violence; rather, physical violence within a marriage is covered by general assault laws. See
U.N. Comm. on the Elimination of Discrimination Against Women, Combined Initial, Second,
and Third Periodic Reports of States Parties: Gambia, art. 44, CEDAW/C/GMB/1-3 (Apr. 10,
2003).
146. See, e.g., ALICE K. ARMSTRONG, CULTURE AND CHOICE: LESSONS FROM SURVIVORS OF
statutory law assumes consent to sex to be part of the marital contract.147 As

long as the "punishment" is not disproportionate to the "offense,"
customary law in Ghana and Zimbabwe allows a husband to "chastise" his
wife.148
Victims of domestic violence and marital rape may have a number of
reasons for not reporting the violence to police. First, access to the legal
system and to social services can be quite limited. For example, 64% of
women living in rural Malawi simply did not know where to go to report
domestic violence.149 Second, marital rape simply may not be
criminalized.150 Third, even if gender-based violence is prohibited, police
and prosecutors may not take the issue seriously.15 ' Fourth, violence may
be so widespread that victims themselves do not view the behavior as
criminal. The belief that husbands have the right to physically punish their
wives is widespread among Commonwealth African countries.152 A 2004
United Nations factsheet, for example, reported that 51% of women in
Botswana believed that their husbands had the right to beat them.' 53 For
these and other reasons, legal prohibitions on domestic violence and
marital rape are not always effective. Widespread public education and
awareness-raising efforts are necessary in order to change public perception
concerning violence against women in the home.154
GENDER VIOLENCE INZIMBABWE 81 (1998) ("'Culturally' a wife is expected to have sex with her
husband, and he is said to be entitled to decide when and how."); BARBARA LOPI ET AL.,
BEYOND INEQUALITIES 2008: WOMEN IN SOUTHERN AFRICA 95 (2008); Cusack, supra note 137, at
29 (observing "unanimity between both women and men that there is no such thing as forced
sex in marriage or that it does not constitute violence").
147. MARION BAUMGART DOS SANTOS, CONSENSUS: COMBATING GENDER BASED VIOLENCE
THROUGH ISLAM, TRADITION, AND LAW 62 (2006).
148. ARMSTRONG, supra note 146, at 55-56 ("[M]any people claim that moderate
'chastisement' of the wife by the husband is allowed . .. .Written records of Shona traditional
law state that a woman may complain if her husband hits her unreasonably or excessively.");
Cusack, supra note 144, at 15 ("[l]t was acceptable to correct, discipline or chastise women and
children so long as the chastisement was seen as being proportionate to the act of
disobedience.").
149. Chisowa, supra note 134, at 34.
150. See, e.g., BHAGLAWATTY GUNGANAH ET AL., BEYOND INEQUALITIES: WOMEN IN
MAURITIUS 28 (1997) (commenting that in Mauritius, "[gliven the state of the present provision
of the law concerning marital obligation it is almost impossible to prosecute marital rape").
151. ARMSTRONG, supra note 146, at 70 ("Although the police are in many instances
helpful, in others they prefer to let the couple solve their problems at home and do not want to
get involved."); Mansah Prah, Outcomes to Women's and Children's Responses, in BREAKING THE
SILENCE, supra note 137, at 110.
152. See, e.g., Morayo Atinmo, Sociocultural Implications of Wife Beating Among the Yoruba in
Ibadan City, Nigeria, in MEN, WOMEN AND VIOLENCE, supra note 136, at 77, 82 (" [A] man does
have the right to control his wife, to be the head of the family, the boss, without being queried.
This is part of the cultural nexus in which men are seen as having a natural right to control and
discipline their wives."); B6lair, supra note 35, at 570 ("[Ujnder customary law, the man has the
right to beat his wife if she 'misbehaves."').
153. LOPI ET AL., supra note146, at 95.
154. See Kathy Cusack, Conclusions, in BREAKING THE SILENCE, supra note 137, at 172, 173
("Such a campaign should include rights awareness work targeting primarily women and
children and information about existing legislation and services, as well as how to access such
services.").

3. Reproductive Rights
The ability to make decisions about one's reproductive capacity and

health is a fundamental right.155 A woman's freedom to choose the number
and spacing of her children may dramatically affect her health, economic
status, education, and many other facets of life.' 56 In parts of
Commonwealth Africa, however, the prevailing legal regime actively limits
women's control over sex and reproduction.157
Colonialism brought restrictive abortion laws to Commonwealth
Africa.' 58 Before the colonial period, some African communities accepted
the use of abortifacients.159 The Maasai in Kenya, for example, allowed the
abortion of unwanted pregnancies in certain situations, such as the
pregnancy of a young, unmarried woman, or in cases of rape. 160 In the
postcolonial period, access to abortion has remained limited throughout
Commonwealth Africa.161 Lesotho, Malawi, Mauritius, Mozambique,
Swaziland, and Tanzania have not modified their abortion laws since
independence, restricting abortion to situations where it is necessary to
save the life of the pregnant woman.162 Some countries recognize a limited
right to abortion when pregnancy or childbirth threaten a woman's
physical or mental health.163 In Botswana, a woman may also end a
pregnancy caused by rape within the first sixteen weeks.' 64 The Ghanaian
Criminal Code provides an exception to the general prohibition in cases of
rape and incest, as well as where there is a risk of serious disease or
deformity of the child. 165 Punishment for violating these laws is often strict.
155. See Cook, supra note 110, at 684 (arguing that "[wiomen's right to control their fertility
... [may] be considered a fundamental key that opens up women's capacity to enjoy other
human rights").
156. See, e.g., U.N. POPULATION FUND, THE RIGHT TO CHOOSE: REPRODUCTIVE RIGHTS AND
REPRODUCTIVE HEALTH 10 (1997).
157. See Higgins et al., supra note 68, at 1677.
158. Charles Ngwena, An Appraisal of Abortion Laws in Southern Africa from a Reproductive
Health Rights Perspective, 32 J.L. MED. & ETHICS 708, 711 (2004).
159. Id. ("Use of abortifacients was largely regarded as a matter for the family rather than
the indigenous court."). But see Nana Oye Lithur, Destigmatising Abortion: Expanding
Community Awareness of Abortion as a Reproductive Health Issue in Ghana, 8 AFR. J. REPROD.
HEALTH 70, 72 (2004) ("Traditionally, abortion is perceived as a shameful act. In the Ga
tradition, families where women are known to have performed abortion are branded as 'the
family where its womenfolk remove pregnancies."').
160. Fred Sai, International Commitments and Guidance on Unsafe Abortion, 8 AFR. J. REPROD.
HEALTH 15,21 (2004).
161. See Ngwena, supra note 158, at 716 ("lTIhe majority of SADC countries have. . . held
on to their colonial bequest of unduly restrictive and inaccessible abortion regimes at the cost
of oppressing women, and jettisoning the goal of achieving gender equality.").
162. Id. at 712.
163. See id. at 711 (providing a comparison of abortion laws in SADC countries).
Initial, Second, and Third PeriodicReports of States Parties:Botswana, art. 240, CEDAW/C/ BOT/3,
(Oct. 20, 2008).
165. See JOHANNA 0. SVANIKIER, WOMEN'S RIGHTS AND THE LAW IN GHANA 59 (1997)
(discussing exceptions to the law restricting abortion).
In Kenya, helping a woman to obtain an abortion exposes the accused to up

to fourteen years in prison, and a woman who has had an illegal abortion
faces up to seven years' imprisonment.166 In Ghana, both parties could be
67
sentenced to up to five years in prison.1
Access to safe abortion depends greatly upon a woman's
socioeconomic position. Safe abortion procedures are largely available only
to wealthier, educated women. 168 Unsafe abortion often leads to severe
medical problems or even death. 169 Approximately 40% of women around
the world who die from unsafe abortions are African (about 34,000 each
year).170 In 1991, 40% of admissions to Cameroonian OB/GYN emergency
wards were related to illegal abortions.171 In a study of two major hospitals
in Ghana, it was found that unsafe abortion caused between 22% and 30%
of maternal deaths.172 Another study estimated that unsafe abortion caused
one third of maternal deaths in Kenya.' 73 Throughout Africa, there is an
inverse correlation between abortion rights and infant and maternal
mortality.174 Although not as restrictive as abortion laws, lack of access to
contraceptives in Commonwealth Africa also interferes with women's
enjoyment of their reproductive rights.175 Breastfeeding and postpartum
abstinence remain the most important methods of reproductive
regulation.176
Although women bear the brunt of pregnancy and childbirth, the
decision to conceive and space their children is often made by their
husbands. 77 Some women fear violence, rejection, or accusations of
extramarital affairs from their partners if they suggest condom use.178
Doctors in Cameroon must have the husband's written permission before
undertaking a permanent sterilization procedure on women. 179 In some

167. Id. at 40.
168. See Sai, supra note 160, at 16.
169. See Lithur, supra note 159, at 72.
170. See Ngwena, supra note 158, at 709.
171. CfR. FOR REPROD. LAW & POLICY, WOMEN OF THE WORLD: FRANCOPHONE AFRICA 76
(1999).
172. Lithur, supra note 159, at 72.
174. See Chad M. Gerson, Toward an InternationalStandard of Abortion Rights: Empirical Data
from Africa, 18 PACE INT'L L. REV. 373,380 (2006).
175. See Ebeneezer Durojaye & Victoria Balogun, Human Rights Implications of Mandatory
PremaritalHIV Testing in Nigeria, 24 INT'L J. L. POL'Y & FAM. 245, 247 (2010).
176. See Sarah C. Richards, "Spoiling the Womb": Definitions, Aetiologies and Responses to
Infertility in North West Province, Cameroon, 6 AFR. J.REPROD. HEALTH 84, 87 (2002).
177. Adjetey, supra note 34, at 1359 ("[Alfter the payment of the bride price all decisions in
relation to a woman's reproductive life are determined by her husband, who has paid for this
right. This in turn impacts on her ability to make decisions on how many children she will bear
and the amount of spacing between each birth.").
178. See LISA VETTEN & KAILASH BHANA, VIOLENCE, VENGEANCE, AND GENDER 10 (2001)
(discussing reasons that South African women do not use contraception despite the AIDS
pandemic).
179. See U.N. Comm. on the Elimination of Discrimination Against Women, Initial Reports
of States Parties:Cameroon, CEDAW/ C/tCMR/1, 95 (May 9, 1999).

communities, the practice of lobola limits a wife's ability to make decisions

regarding contraception, as her husband may believe that he bought the
right to control her reproductive life.180
When a woman does conceive, she faces the threat of maternal
mortality. The risk of a woman in Sub-Saharan Africa dying in pregnancy
over the course of her life is roughly 1 in 13.181 By contrast, women in
industrialized countries face a 1 in 4,100 chance of dying in childbirth. 182
Pregnancy is a significant risk for a woman and one that she may not
undertake voluntarily.
Women's ability to exercise their reproductive rights is slowly
improving throughout Africa. Fertility rates are dropping, 83 and certain
governments have issued official policies to support family planning.184
Nevertheless, women's access to contraception and safe abortions remains
limited. Women's inability to regulate the number and spacing of their
children sometimes exposes them to devastating economic, cultural, and
medical consequences.
C. Rights at Dissolution of Marriage
1. Property
Statutory law generally regulates the dissolution of civil marriages.

Ethiopia, Ghana, and South Africa, among other countries, have extended
the reach of formal, civil courts in matters related to dissolution of
marriage.185 Some Commonwealth countries have retained a fault-based
divorce system. Civil divorce in Namibia, for example, is permissible upon
a showing of adultery, malicious desertion, and under certain
circumstances imprisonment and insanity, with a larger share of marital
property going to the "innocent" party.186 Other countries allow no-fault
divorce within civil marriages on the grounds of "irretrievable breakdown"
of the marriage. 87
Customary law generally provides little property for divorcing
women. 88 Customary divorces are often negotiated by the families of the
180. See Adjetey, supra note 34, at 1359.

181. UNICEF, PROGRESS SINCE THE WORLD SUMMIT FOR CHILDREN: A STATISTICAL REVIEW
14 (2001), available at http://www.unicef.org/publications/files/pub-
wethechildrenstatsen.pdf.
182. Id.
183. ANGLOPHONE AFRICA, supra note 124, at 30, 53 (demonstrating falling fertility rates in
Ghana and Kenya).
184. Id. at 37 (describing initiatives of the Ghanaian government).
185. CfR. FOR REPROD. LAW & POLICY, WOMEN OF THE WORLD: ANGLOPHONE AFRICA: 2003
SUPPLEMENT 167 (2003).
186. IIPINGE & LEBEAU, supra note 13, at 32.
187. ANGLOPHONE AFRICA, supra note 126, at 141 ("Irretrievable breakdown is defined to
be a state where 'there is no reasonable prospect of the restoration of a normal marriage
relationship.'").
188. See, e.g., Sam, supra note 46, at 212-13 ("At dissolution of a traditional marriage before
spouses' 89 and often require that the wife's family repay any bridewealth
that was paid at the time of the marriage. 190 Divorce under customary law
rarely provides the divorcing wife any property beyond a minimal amount
of money or personal property. 91 In Ghana, women divorcing under
92
customary law may be entitled to "send off" money.1
According to Zimbabwe's Matrimonial Causes Act, courts must
equitably divide marital property in the event of dissolution of a registered
customary marriage.193 Because many Zimbabwean women have
unregistered customary law marriages, however, they are unable to receive
relief under the Matrimonial Causes Act.194 In Ghana, the Matrimonial
Causes Act governs divorces in civil law marriages and, in very limited
circumstances, some customary marriages.195 As I have noted elsewhere, in
Ghana, "[diespite additional constitutional guarantees requiring that assets
jointly acquired during the marriage be 'equitably' distributed upon
divorce, women continue to be at the mercy of judges' discretion in a legal
and social environment in which women's financial and nonmonetary
196
contributions to the marriage are minimized or ignored."
2. Custody and Maintenance
Child custody decisions under customary law in patrilineal

communities in Commonwealth Africa favor the father and the father's
family.197 Under customary law in many countries with patrilineal systems,
the father takes custody of any non-infant children, because children
resulting from marriage are considered part of the father's extended
family.198 In some cases, the payment of bridewealth is dispositive in
99
determining custody under customary law,1 because traditionally,
family elders, men's exclusive property rights often leave women with nothing, particularly
when family elders determine that a women is at fault in a divorce.").
190. Sam, supra note 46, at 212 ("When women's parents are unable to return the dowry
money, women cannot escape bad or abusive marriages.").
191. See, e.g., Davies, supra note 68, at 19; Barbara Stark, When Globalization Hits Home:
InternationalFamily Law Comes of Age, 39 VAND. J. TRANSNAT'L L. 1551,1577 (2006).
192. Ghana's Matrimonial Causes Act allows women and men in customary marriages to
petition the formal courts to apply the provisions of the Act subject "to the peculiar incidents
of that marriage." ANGLOPHONE AFRICA, supra note 126, at 43.
193. TICHAGWA, supra note 44, at 20.
194. Id.
195. Johanna Bond, Introduction to Chapter Three: Women's Rights Within the Family, in
VOICES OF AFRICAN WOMEN, supra note 4, at 184.
196. Id. at 184-85.
197. Regina Lule Mutyaba, Comparative Study of the Status of Women Under the Law of
Divorce and of Their Economic Status in Uganda, Britain, and Bangladesh, in VOICES OF AFRICAN
WOMEN, supra note 4, at 218, 227 ("[I1n patrilineal Uganda, children belong to the husband and
courts award custody accordingly.").
Third, Fourth, and Fifth Periodic Reports of States Parties: Ghana, art. 207, CEDAW/C/GHA/3-5
(Apr. 18, 2005).
199. See LETUKA ET AL., supra note 36, at 26; Fareda Banda, Custody and the Best Interests of

payment served "as a mechanism for the lineage and affiliation of a child to
the father." 200
Under statutory law, many courts strive to award custody of a minor
child to the parent who will best provide for the child's welfare. The
Gambia, Lesotho, and Malawi are among the countries that use a "best
interest of the child" standard to determine custody. 201 Judges tend to
interpret the "best interest of the child" in terms of material welfare such as
a child's living conditions, medical care, and opportunities for education. 202
A 1994 case from South Africa broadened this interpretation to the child's
"physical, moral, emotional, and spiritual welfare." 203 In Zimbabwe, the
primary matter discussed in determining the best interest of the child is
who the caretaker would be and how well that person would accomplish
the task. 204
Customary law generally makes no provision for spousal maintenance
after divorce. 205 Zimbabwe's 1982 Customary Law and Primary Courts
Amendment Act, however, "imposes a duty on the husband of a woman
under customary law to maintain his wife or ex-wife until her remarriage
or death." 206 In contrast to customary law, statutory law in the region tends
to recognize a duty to maintain former spouses. 207 Tanzania's Law of
Marriage Act includes maintenance for women after divorce. 208 In most
Commonwealth African countries where spousal maintenance is available
under statutory law, the woman's subsequent remarriage will extinguish
the Child: Another View from Zimbabwe, in THE BEST INTERESTS OF THE CHILD 197, 197 (Philip
Alston ed., 1994) (noting that "[tihe question of whether or not lobolo has been paid still tends
to influence the Community Courts' decisions").
200. LAW REFORM COMM'N OF TANZ., REPORT OF THE COMMISSION ON THE LAW OF
SUCCESSION/INHERITANCE 7 (1995).
Second, Third, Fourth, and Fifth Periodic Report of States Parties: Malawi, art. 83
CEDAW/C/MWI/2-5 dune 28, 2004); U.N. Comm. on the Elimination of Discrimination
Against Women, Combined Initial, Second, and Third Periodic Reports of States Parties: Gambia, art.
43, CEDAW/C/GMB/1-3 (Apr. 10, 2003); LETUKA ET AL., supra note 36, at 26.
202. Athaliah Molokomme & Keletso Mokobi, Custody and Guardianship of Children in
Botswana: Customary Laws and Judicial Practice within the Framework of the Children's Convention,
in LAW, CULTURE, TRADITION AND CHILDREN'S RIGHTS IN EASTERN AND SOUTHERN AFRICA 191, 194
(Welshman Ncube ed., 1998).
203. Nazeem Goolam, Constitutional Interpretation of the "Best Interests" Principle in South
Africa in Relation to Custody, in THE CHANGING FAMILY: INTERNATIONAL PERSPECTIVES ON THE
FAMILY AND FAMILY LAW 372 (John Eekelaar & Thandabantu Nhlapo eds., 1998) (quoting
McCall v. McCall, 1994 (3) SA 201 (CC) at 205 (S. Afr.)).
204. See Alice Armstrong, School and Sadza: Custody and the Best Interests of the Child in
Zimbabwe, in THE BEST INTERESTS OF THE CHILD, supra note 197, at 160.
205. In Nigeria, for example, "divorce under customary law terminates all rights of
spousal maintenance." ANGLOPHONE AFICA, supra note 126, at 84; see also ALICE ARMSTRONG,
STRUGGLING OVER SCARCE RESOURCES: WOMEN AND MAINTENANCE IN SOUTHERN AFRICA 48
(1992).
206. See WOMEN & LAW IN S. AFR. RES. PROJECT, MAINTENANCE IN ZIMBABWE 37 (1991)
(discussing the evolution of maintenance rights under common law).
207. ANGLOPHONE AFRICA, supra note 126, at 141 ("The Matrimonial Causes Act empowers
courts to . .. provide for the maintenance of spouses and children.").
208. Calaguas et al., supra note 42, at 501-02.
the right to maintenance. 209 Recent legislation in some countries requires

parents to provide maintenance for their children, including those born
outside of the marriage. 210
3. Widowhood
The death of a spouse can be emotionally, physically, and financially

devastating for women in Commonwealth African countries. In addition to
the trauma of losing a loved one, widows in some regions face the
possibility of widow inheritance, or levirate marriage, in which a widow is
forced to marry the brother or another male relative of her deceased
husband. 211 Traditionally, levirate marriage provided a vehicle through
which the husband's family could financially support the widow and her
children.212 Today, the practice is sometimes seen as a way for the
husband's family to access any wealth the deceased acquired during his life
213
and to provide sexual access to the deceased's wife.
High rates of HIV infection make the tradition particularly dangerous
for widows.214 Some communities also practice "widow cleansing," in
which custom dictates that a widow must undergo a cleansing ritual after
the death of her husband. 215 Some rituals require the widow to have sexual
intercourse with one or more men to cleanse the widow of omens or
witchcraft. 216 Given the risk of HIV infection, the practice severely
jeopardizes women's health. 217
In some countries, widows experience "property grabbing," which
occurs when relatives of the deceased husband come into the widow's
218
home and confiscate some or all of the moveable property. Sometimes
the widow is forced to abandon the marital home and all of her
219 it is not
belongings. In communities that allow property grabbing,
209. WOMEN & LAW IN S. AFR. RES. PROJECT, supra note 206, at 41.
210. See LOPI ET AL., supra note 146, at 83 (describing the 2003 Namibian Maintenance Act).
211. Kenneth Kaoma Mwenda, African Customary Law and Customs: Changes in the Culture of
Sexual Cleansingof Widows and the Marrying of a Deceased Brother's Widow, 11 GONZ. J.INT'L L. 1,
3 (2007).
212. See Laurel L. Rose, Women's Land Access in Post-Conflict Rwanda: Bridging the Gap
Between Customary Land Law and Pending Land Legislation, 13 TEX. J. WOMEN & L. 197, 210 (2004).
213. Mwenda, supra note 211, at 14-15.
214. Id. at 20 ("Some people believe the practice contributes to the spread of HIV in sub-
Saharan Africa, where about 25 million people are HIV-positive and about 60% of them are
women.").
215. Id. at 9 (" [Liocal members of the Ndanga village maintain that sexual cleansing of
widows is an indispensable custom and believe in upholding tradition. . .; the belief being
that a widow who has not been sexually cleansed is haunted by the spirit of her deceased
spouse until she has been cleansed by the relatives of the deceased.").
216. Maria Tungaraza, Women's Rights and the AIDS Epidemic in Tanzania, in VOICES OF
AFRICAN WOMEN, supra note 4, at 301,304.
217. Mwenda, supra note 211, at 3.
218. See Rachel C. Loftspring, Inheritance Rights in Uganda. How Equal Inheritance Rights
Would Reduce Poverty and Decrease the Spread of HI V/AIDS in Uganda, 29 U. PA. J. INT'L L. 243,
248 (2007).
219. See Mwenda, supra note 209, at 3.

uncommon for women to be left destitute after the death of a husband. 220
The marital rights women enjoy and the marital indignities that they
endure vary significantly depending on local community practices, the
extent to which the state has injected itself into marriage regulation, and the
extent to which women opt for state rather than community control over
their marriages. In the last several decades, marriage legislation within the
Commonwealth has tended to carve out incrementally larger segments of
family law for state rather than community regulation. Despite the
legislative trend toward greater statutory regulation of marriage and
family, however, communities continue to have a strong hold on the
customs and traditions that regulate entrance into the community through
customary marriage. Indeed, the rates of customary marriage surpass those
of statutory marriage in many Commonwealth African countries. As such,
the promotion of marriage equality through legislation is slow at best,
particularly in areas where legal literacy is low and the influence of custom
and tradition is strong.
II. VALUES ANIMATING REFORM: CULTURE, EQUALITY, AND AGENCY
A. Underlying Values
Two primary societal values form the backdrop for the debates on
marriage reform in much of Commonwealth Africa. These values, the
preservation of culture and the promotion of equality, are at times mutually
reinforcing and at times competing. Recent constitutional reforms in many
Commonwealth African countries reflect a commitment to gender
equality. 221 Ugandan scholar Sylvia Tamale has illustrated how some
cultural traditions support women's equality. 222 Tamale cites a Ssenga
practice in which the paternal aunts of a new bride provide sexual
instruction to her prior to her wedding. 22 3 Although traditionally focused
on the provision of male sexual pleasure, more recently the practice has
served as a vehicle for women's sexual empowerment. 224 Other cultural
220. Richardson, supra note 9, at 19.

221. See, e.g., Penelope E. Andrews, Striking the Rock: Confronting Gender Equality in South
Africa, 3 MIcH. J. RACE & L. 307, 327-28 (describing the Bill of Rights in the South African
Constitution).
222. See Sylvia Tamale, Faculty of Law, Makerere Univ. (Uganda), Presentation at the
African Feminist Forum: 'African Feminism' Taking a 'Cultural Turn' 3 (Nov. 15, 2006).
223. Id. at 10. In a presentation to the 2006 African Feminist Forum, Sylvia Tamale notes,
"Through a socio-cultural analysis of the institution of Ssenga (sexual initiation by the paternal
aunt), I discovered how the evolution of Ssenga practices has allowed Baganda women to
negotiate agency, autonomy and self-knowledge about their sexuality." REPORT OF THE
AFRICAN FEMINLST FORUM 12 (2006), available at http://www.africanfeministforum.com/wp-
content/uploads/2010/10/AFF-2006-Report.pdf.
224. Id. ("Explicit and daring topics regarding women's pleasurable sexuality . . . have
become part of Ssenga's repertoire of tutoring techniques. While the traditional message from
Ssenga focused on men's sexual pleasure, young Baganda women today are demanding that
men also receive training in how to please their female partners.").
20 11] Culture, Dissent, and the State 31
traditions, such as FGM, are clearly in tension with women's equality. 225
Marriage often involves rituals; it reflects customs and traditions that are
central to the communities celebrating the marriage.226 Marriage is also a
site of contestation, in which women and men define themselves both
according to and, at times, in contradistinction to expected roles. 227
Marriage has historically fostered women's subordination within the
family. 228 Feminists around the globe have begun to dismantle the
public/private divide, subjecting marriage and the family to public scrutiny
in important ways. 229 As a result, most states, including many in
Commonwealth Africa, see marriage as an appropriate political space
within which to intervene to promote gender equality. Marriage, however,
remains a contested space, where both traditional gender roles and gender
equality find expression to varying degrees. Both the preservation of
culture and the promotion of gender equality animate the discourse
surrounding the reform of marriage law in the region.
Around the world, contemporary discourse regarding cultural norms is
punctuated with "challenges by individuals within a culture to modernize,
or broaden, the traditional terms of cultural membership." 230 The success of
these reform efforts depends, in part, on the use of law to either squelch or
facilitate dissent. Madhavi Sunder contrasts these approaches,
characterizing them as "cultural survival" and "cultural dissent,"
respectively. As Sunder explains, "'[c]ultural survival' measures often end
up impeding internal reform efforts to contest discriminatory or repressive
225. See, e.g., INTERAGENCY STATEMENT, supra note 97, at 9. ("Female genital mutilation
violates a series of well established human rights principles, norms and standards . . . .").
226. See Pdiivi Koskinen, To Own or to Be Owned: Women and Land Rights in Rural Tanzania,
2002 HUM. RTs. DEV. Y.B. 145, 153-54 (2002) (explaining that "[cjustomary laws related to the
various aspects of family life are based on the social relations between men and women or,
more specifically, on relations between husbands and wives: these are the unwritten social
rules and structures of a community, which derive from shared values and traditions").
227. Marjorie Weinzweig, Should a Feminist Choose a Marriage-Like Relationship?, 1 HYPATIA
139, 142 (1986) (noting also that "the rigid distribution of roles in traditional marriage and the
personality characteristics which women have had to develop in order to fulfill these roles
have made it very difficult for women to develop themselves as individuals with interests and
ideas separate from those of the members of their families").
228. See, e.g., id. at 14142 ("[In traditional marriage, the woman was treated as the man's
sexual and economic property. . . . [TJhe relationship between the partners is that of
domination and exploitation rather than one based on respect for persons and equality.");
Margot Lovett, "She Thinks She's Like a Man": Marriage and (De)constructing Gender Identity in
Colonial Buha, Western Tanzania, 1943-1960, in "WICKED" WOMEN AND THE RECONFIGURATION
OF GENDER IN AFRICA 47, 53 (Dorothy L. Hodgson & Sheryl A. McCurdy eds., 2001)
("[Flemales never would shed their subordinate position. Regardless of age, women would
perpetually be jural minors, subject first to the authority of their fathers, then to that of their
husbands, and, eventually, to that of their sons. Thus, they learned that their subordination
was a life-long condition.").
229. Rhonda Copelon, Confronting Domestic Violence and Achieving Gender Equality:
Evaluating Battered Women & Feminist Law-Making by Elizabeth Schneider, 11 AM. U. J. GENDER
Soc. POL'Y & L. 865, 867 (2003) (recalling how feminists challenged "the public/private
distinction," and asserted that "basic human rights principles include certain positive state
responsibilities that should apply to private gender violence").
230. Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495, 495 (2001).

cultural norms." 231 Cultural survivalists use the law to suppress dissent in
the name of preserving a static vision of culture and tradition and often at
the expense of women seeking to assert gender equality rights within a
given culture.232
By contrast, "'cultural dissent' . . . recognizes that cultures are
233
changing, in some ways for the better." Cultural dissent encourages
progressive voices to challenge and redefine cultural norms, including
those that determine marital roles and expectations. It is this tension
between the preservation of culture and the promotion of equality within
culture, or between cultural survival and cultural dissent, that animates the
debates concerning the reform of marriage law in the African
Commonwealth.
Sunder argues that "[w]e ought to ensure that legal efforts to counter
globalization and modernization do not buttress the hegemony of cultural
elites and suppress efforts by cultural dissenters to gain autonomy and
equality within their cultural context." 234 Likewise, I have suggested
elsewhere that some recent regional human rights mechanisms offer
"largely unexplored procedural, dialogical rights that have the potential to
engage women in the public discourse that shapes African customary
law." 235 This kind of facilitated dialogue, therefore, creates the space for
cultural dissenters.
B. Colonialism and the Preservation of Culture
Although Commonwealth African societies had plural legal systems in

the pre-colonial era, colonialism brought a new, Eurocentric version of
pluralism to the continent. 236 In most Commonwealth African countries,
British common law applied to Europeans, and customary law applied to
the indigenous population in certain areas like family law. 237
Colonial authorities considered customary law to be inferior to the
statutory or "received" British law. 238 According to the South African Law
231. Id. at500.

232. Id.
233. Id. at500-01.
234. Id. at 504.
235. Bond, Gender, Discourse, supra note 12, at 512.
236. See Sally Engle Merry, Legal Pluralism, 22 LAw & SoC'Y REv. 869, 869-70 (1988) ("For
proponents of empire in the nineteenth century, this imposition of European law was a great
gift, substituting civilized law for the anarchy and fear that they believed gripped the lives of
the colonized peoples. . . .").
237. ANNE M.O. GRIFFITHS, IN THE SHADOW OF MARRIAGE: GENDER AND JUSTICE IN AN
AFRICAN COMMUNITY 33-34 (1997) (explaining that "[tlhe rationale behind" the separate
jurisdictions for British common law and customary law "was that the Africans were to be left
to run their own affairs except where these might come into conflict with the interests of
colonial powers").
238. See Merry, supra note 236, at 890 ("During the nineteenth and early twentieth
centuries, British law represented to the colonizers in India and Africa a substantial advance
over the 'savage' customs of the colonized."); Justice Modibo Ocran, The Clash of Lgal Cultures:
The Treatment of Indigenous Law in Colonial and Post-ColonialAfrica, 39 AKRON L. REV. 465, 470
Reform Commission, colonial authorities viewed customary law as

"inferior, only to be tolerated 'in areas of marginal significance to the
colonial regime' and only to the extent that it was useful as an instrument
of colonial rule." 239 Colonial authorities in South Africa devalued
customary law and invalidated it when they considered it to be
incompatible with "general principles of humanity observed throughout
the civilized world." 24 0 South African legislation in 1864 allowed Africans
who were - in the words of the colonial authorities - sufficiently
"detribalized . . . to apply for exemption from the application of customary
law." 241
Despite the creation of dual systems of law in which customary law
applied to the family law disputes of the indigenous African population,
the customary law that the colonial authorities applied when called upon to
do so reflected the interpretation of the colonial authorities and the male
indigenous elites with whom they collaborated. 242 Customary law today
thus reflects an amalgam of tradition and colonial influence.
Two important values emerged within the postcolonial state: state
sovereignty and the preservation of indigenous African culture and
tradition. Not surprisingly, post-colonial states keenly protected their
sovereignty. 243 As newly independent states, many leaders were also
concerned about democracy and human rights. This balance between
tradition and modernity is evident in the drafting of the African Charter on
Human and Peoples' Rights. 244 The drafters of the Charter attempted to
create a treaty that reflected both a basic commitment to human rights and
"African circumstances and sensibilities." 245
Having suffered under European occupation, postcolonial states also
(2006) ("In colonial Africa, the merger of the two cultures occurred as the British accepted
customary law to some extent, but also riddled it with so-called repugnancy clauses, in order
to avoid those aspects of African customs that European culture found most appalling,
ridiculous, or simply unhelpful to the inculcation of Christian ideals.").
239. Evadn6 Grant, Human Rights, Cultural Diversity and Customary Law in South Africa, 50 J.
AFR. L. 2,14 (2006) (quoting S. AFR. LAW REFORM COMM'N, THE HUMANIZATION OF COMMON
LAW AND THE INDIGENOUS LAW 10 (1999)).
240. Id. at 13 (citation omitted).
241. Id (citation omitted).
242. See Martin Chanock, Neither Customary Nor Legal: African Customary Law in an Era of
Family Law Reform, 3 INT'L J.L. & FAM. 72, 77 (1989) ("It is important that we understand the
input of the colonial courts and administrators and missionaries into the fashioning of the
customary law of marriage, and that we avoid treating the development of African family law
as if it was isolated from the dominant 'white' system. Once we understand the modern
customary law as the product of this interaction during the colonial period, it again becomes
harder to invoke custom in opposition to reform.").
243. See Adrien Katherine Wing & Tyler Murray Smith, The New African Union and
Women's Rights, 13 TRANSNAT'L L. & CONTEMP. PROBS. 33 (2003) (describing states' insistence
on sovereignty during the post-colonial establishment of the Organization for African Unity
(OAU), followed by the African Union (AU)).
244. Nsongurua J. Udombana, Between Promise and Performance: Revisiting States'
Obligations Under the African Human Rights Charter, 40 STAN. J. INT'L L. 105, 110 (2004).
245. EVA BREMS, HUMAN RIGHTS: UNIVERSALITY AND DIVERSITY 93-94 (2001).

zealously guarded indigenous culture and tradition. 246 Customary law is

seen as the legal expression of culture and tradition and is valued on that
basis. As Fareda Banda notes, "part of the struggle for independence was
so that Africans could reclaim their much derided culture, thus the
resistance to the perceived re-imposition of European values in the guise of
human rights norms." 247
C. Constitutionalism and the Promotion of Equality
Drafters of the postcolonial constitutions and later constitutional

iterations undoubtedly felt a tension between preserving the culture and
traditions that were threatened under colonial rule and the promise of
human rights and democracy, including gender equality. 248 Many of the
constitutions that were drafted during the 1990s, during a wave of
constitutional activity, include gender equality provisions. 249 Some of these
equality provisions, however, are limited in their breadth, making them less
effective in the pursuit of gender equality. 250
In a handful of Commonwealth African countries, the constitutional
text specifically excludes family or customary law from the purview of the
constitutional non-discrimination clause. 251 These "exclusionary clauses"
reflect the tension between the preservation of custom and culture and
notions of gender equality. 252 In Zimbabwe, the presence of an
exclusionary clause in the constitution led the Supreme Court to conclude,
in the Magaya case, that a customary inheritance law that denied a woman's
right to inherit on the basis of her gender did not violate the constitutional
non-discrimination clause, because issues of inheritance were specifically
excluded from constitutional non-discrimination protection. 253
In other countries, customary law is explicitly valued as a source of law
but is nevertheless subject to the Bill of Rights. 254 In South Africa in 2008,
the Constitutional Court held that traditional authorities had the right to
develop the customary law in conformity with the Constitution. 255 In so
246. See Koskinen, supra note 226, at 156 ("The customs and traditions of a given people
have political significance for the African states, as they may also act as a symbol of cultural
identity in the post-colonial era.").
247. Fareda Banda, Global Standards:Local Values, 17 INT'L J. L. POL'Y & FAM. 1, 7 (2003).
248. See, e.g., Wing & Smith, supra note 241, at 58 ("It appears that the [African] Charter
was conflicted from the beginning given its attempt to reconcile deep-seated African values
(which arguably subjugate women's gender roles) and the emerging global values of non-
discrimination and gender equality.").
249. See Andrews, supra note 221, at 315.
250. Bond, Constitutional Exclusion, supra note 12, at 291.
251. Id.
252. See id. at 306-07.
253. Magaya v. Magaya 1999 3 L.R.C 35, 40 (Zimb. Sup. Ct.); see also Valerie Knobelsdorf,
Zimbabwe's Magaya Decision Revisited: Women's Rights and Land Succession in the International
Context, 15 COLUM. J. GENDER & L. 749, 760-61 (2006).
254. See, e.g., Tracy E. Higgins, ConstitutionalChicken Soup, 75 FORDHAM L. REV. 709, 711
(2006).
255. Shilubana & Others v. Nwamitwa, 2008 (2) SA 66 (CC) at para. 85 (5. Afr.).
doing, the Court ruled that the Royal family of the Valoyi in Limpopo had
the right to designate a woman, Ms. Tinyiko Shilubana, as successor to the
chieftaincy title. 256 In another case in South Africa, Bhe v. Magistrate,
Khayelitsha, the Constitutional Court also held that a woman could inherit
property upon the death intestate of her father, contrary to local customary
law.257
In the Zimbabwe case of Magaya and the South African cases of Bhe and
Shilubana, the respective courts struggled with the tension between the
preservation of culture and custom and the promotion of equality norms
within culture. In many ways, the Zimbabwean case represents Sunder's
"cultural survival" approach, while the Bhe and Shilubana cases represent,
in Sunder's terms, a "cultural dissent" approach. 258 The Zimbabwean
Constitution thus shields customary and family law from constitutional
challenge and impedes cultural dissent, whereas the South African text
offers a textual source for dissenting voices.
D. Agency and Choice
Marriage is an expression of entrenched social values throughout the

world, including in Commonwealth Africa. 259 Removing the state from its
regulatory role, therefore, will not likely deter marriage in the region but
will narrow the range of marriage options. Within plural legal systems in
which couples choose to marry according to statutory, customary, or
religious law, withdrawal of the state from marriage regulation would
effectively eliminate the choice of civil marriage, leaving customary and
religious marriage as the options for those seeking to marry. Because
marriage is a particularly highly valued institution in Commonwealth
Africa, if the state were to regulate intimate relationships through the law
of contract - as some feminists in the global North have suggested - many
couples would simply opt for customary or religious marriage instead.
Although the level of state engagement with customary marriage varies by
country, generally the state has little formal oversight over customary
marriages. 260 Removal of state regulation would mean that customary and
religious law would exclusively govern women's rights within marriage.
256. Editorial, A Female Child Can Inherit Her Father's Chieftaincy Title, ALLIANCES FOR AFR.
(July 29, 2008), http://www.alliancesforafrica.org/editorial.asp?page-id=137.
257. Bhe and Others v. Khayelitsha Magistrate & Others 2004 (1) SA 580 (CC) (S. Afr.) (holding
that male primogeniture is unconstitutional as it discriminates unfairly against women).
258. See Sunder, supra note 230, at 500-01.
259. See, e.g., Lovett, supra note 41, at 289 ("Pressure [to marry] was brought to bear on
them not only from their own families, but from the wider community as well.").
260. By way of example, the Matrimonial Causes Act in Ghana primarily envisions a role
for traditional leaders in the dissolution of customary marriages. The Act, however, allows the
formal courts to hear a customary divorce upon application by one of the parties. Couples in
customary marriages rarely invoke thiis provision and rely primarily on customary dissolutiun.
See Ulrike Wanitzek, Integration of Personal Laws and the Situation of Women in Ghana: The
Matrimonial Causes Act of 1971 and Its Application by the Courts, 1991 THIRD WORLD LEGAL STUD.
75, 79 (1991).

Given the patriarchal social and legal structures in Commonwealth

Africa, to what extent can women exercise real choice in selecting a
marriage regime? For many women, the choice of marriage systems is
constrained by the patriarchal social context within which the exercise of
"choice" occurs. 261 The choice of marital regimes is, in fact, often made by
the families of the couple rather than the couple themselves. 262 In these
cases, women experience a lack of decisional authority at the hands of both
the older generation and the future husband.
The choice here is not consistent with liberalism, which "posited a
subject whose humanity consisted in her theoretically unlimited potential,
and her capacity to exercise meaningful choice in the direction of her own
life." 263 Kathryn Abrams' theory of partial agency "seeks to describe a
subject whose agency emerges against the backdrop of, and co-exists in
tension with, systemic gender-based oppression." 264 This notion of partial
agency recognizes that women cannot be defined purely as victims of their
culture; they act against and resist gender-based oppression even as they
experience it and internalize it in their daily lives.
Within Commonwealth African countries, women's ability to exercise
agency in pursuit of a more liberal marital regime depends to some extent
on geography. Women in rural areas are less likely to be aware of the
option to choose statutory marriage law or are unable to access the formal
civil legal system. In rural areas of Ghana, for example, "the problems of
distance, poor transportation facilities, travel costs, use of an unknown
court language (English), highly formalized and therefore unintelligible
court procedures, court fees, and the cost of legal representation" are
obstacles for women seeking to access the civil legal system. 265 Social
pressure in rural areas also serves as a disincentive to opt out of customary
or religious marriages. 266
In many Commonwealth African countries, the majority of couples
choose to marry according to customary law. 267 In some cases, couples
enter into a civil marriage and celebrate the marriage according to custom
as well, leading to an informal hybrid marriage. 268 According to one
261. See, e.g., Andrews, supra note 12, at 368-69 (remarking that "[tlhe reality is that
women's continuing subordinate status in South Africa curtails the free exercise of her choice
in a range of situations, including whom she chooses to marry.").
262. See, e.g., Higgins et al., supra note 68, at 1671-72 ("The most clear-cut example of
family control is when the family enters into marriage negotiations without the knowledge,
much less the consent, of either individual.").
263. Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95
COLUM. L. REv. 304,326 (1995).
264. Id. at 333.
265. Wanitzek, supra note 259, at 85.
266. Id. ("[I]t is not always easy for somebody who is living in the traditional setting to
escape the framework of customary law as applied in the local community, and to seek a relief
in the state court which is not accepted under the local customary law.").
267. See, e.g., Elsje Bonthuys & Natasha Erlanik, The Interaction Between Civil and Customary
Family Law Rules: Implicationsfor African Women, 1 J. S. AFR. L. 59, 60 (2004).
268. Bolaji Owasanoye, The Regulation of Child Custody and Access in Nigeria, 39 FAM. L. Q.
estimate, approximately eighty percent of marrying couples in Ghana

marry under customary law. 269 Eliminating the statutory marriage regime,
therefore, would appear to have a minimal impact on the majority of
women in marriages.
These facts notwithstanding, the choice to marry according to civil law
serves two important expressive functions. First, for those who are able to
meaningfully "choose" despite patriarchal constraints on agency, the choice
of civil marriage may signify an act of resistance. A couple's decision to
marry according to statutory law expresses, among other things, a desire
for a more egalitarian vision of marriage. In countries where the majority
of women marry according to customary or religious law, the minority of
women who choose civil marriage exercise partial agency and constitute
examples of Sunder's cultural dissenters. Second, the provision of a
statutory alternative to customary or religious marriage expresses the
state's intention to offer a more egalitarian vision of marriage. Of course,
there is often a substantial gap between the more egalitarian vision of
marriage expressed in statutes and the realities of marriage as experienced
in the daily lives of women. 270 Nevertheless, the existence of a state-
sponsored marriage alternative that seeks to promote equality, even one
that falls short of that goal, signals that equality is a valued social good.
The choice to marry according to civil law is a complex one fraught not
only with issues of cultural identity and self-assertion but also with issues
of colonialism. Because statutory family law was introduced during the
colonial period and initially applied only to colonial authorities, the
statutory marriage regime has retained some colonial undertones. As
Ulrike Wanitzek suggests in the context of Ghana, "the [civil] marriage is
seen as the 'white man's system of marriage." 271 This racial coding may
make it more complicated for women to opt for statutory marriage.
Those women who exercise agency by opting out of customary or
religious marriage regimes do so for a variety of reasons, including the
perception that statutory regimes offer greater rights protection for women
in marriage, which is often but not always the case. 272 Were the state to
405, 408 (2005) (describing the trend in Nigeria, "particularly predominant among educated
couples, . . . to first perform a customary or Islamic marriage, with all of its prescribed
incidents, followed by a church or registry wedding that is statutory and monogamous in
nature").
269. Fenrich & Higgins, supra note 5, at 284.
270. See Higgins et al., supra note 68, at 1677-78 ("This understanding of man as head of the
household and a rejection of norms of equality in the home was echoed in many interviews
with women themselves. For example, in GaMatlala, one woman explained that 'in our homes
the husband is master, we don't want to be in charge of the home.' Another added that 'we
agree that the Constitution says that equality exists, but in our home we want to follow our
customs."').
271. Wanitzek, supra note 259, at 82.
272. See Garton Sandifolo Kamchedzera, Malawi: Improving Family Welfare?, 32 U.
LOUISVILLE J. FAM. L. 369, 372 (1993) ("Some Africans deliberately ignore the customary
marriage system for the security the monogamous common-law-based marriage is believed to
offer due to the difficulty in dissolving such a marriage. However, in a society where the

withdraw from marriage regulation, making customary or religious law the

de facto marriage regime, it would remove an important avenue for women
to exercise agency in defining the contours of the marital relationship and
its corresponding rights and duties. The option to exercise agency in this
way has a very real impact on women who exercise the option and serves
an important expressive function even for those who do not.
Thus, removing the state from marriage regulation entirely would
effectively cede control over all aspects of marriage to local communities.
Although the cultural constraints on women's agency in the choice of
marital regime are significant, it is important to preserve meaningful choice
for those fortunate enough to be able to exercise it. Moreover, the choice of
marital regimes has symbolic and expressive value, offering women an
alternative vision of marriage that may incrementally alter gender roles
over the course of generations.
III. JUSTIFIABLE STATE INTERFERENCE
A. Questioning the State's Role in Marriage
A number of scholars in the global North have recently advocated a

limited role for state oversight of marriage. 273 Martha Fineman has argued
that the state should extricate itself from marriage regulation entirely,
leaving couples to negotiate a contract that would govern the rights and
responsibilities of their relationship. 274 Others have advocated for a limited
role for the state in overseeing a registration system that would allow
couples to register a variety of intimate relationships, including but not
limited to conjugal relationships. 275 Some commentators have suggested
that retaining marriage for opposite-sex couples and adding a civil union
status for same-sex couples is the most politically viable approach. 276 Still
others have argued for retaining marriage but extending it to include same-
sex couples. 277 Although the level of state involvement in the regulation of
intimate relationships remains a hotly contested issue, a number of
feminists envision a shrinking role for the state as regulator.
In contrast, I argue that in Commonwealth Africa, the state should have
literacy rate is very low, the knowledge of the advantages offered by the different family legal
systems is limited.").
273. See generally Solot & Miller, supra note 1.
274. Fineman, supra note 2, at 57 (arguing that "adults should be free to fashion the terms
of their own relationships and rely on contract as the means of so doing, effectively replacing
the marital status with actual negotiation and bargaining building on the increased acceptance
of premarital agreements.").
275. See, e.g., LAW COMM'N OF CAN., supra note 15, at 122 ("Governments should attempt to
design their international arrangements on the basis of the existence of a variety of
relationships and move toward an international recognition of registrations.").
276. See James L. Musselman, What's Love Got to Do With It? A Proposalfor Elevating the
Status of Marriage by Narrowing its Definition, While Universally Extending the Rights and Benefits
Enjoyed by Married Couples, 16 DUKE J. GENDER L. & POL'Y 37, 74 (2009).
277. See, e.g., McClain, supra note 15, at 107-08.
a more expansive role in the regulation of marriage. I conclude that

continued state regulation of marriage is critically important for
Commonwealth African women's rights within marriage. International
human rights law presumes a role for the state in the protection of women's
rights within marriage.278 Under human rights law, states enter into
279
treaties binding them to uphold the human rights provisions therein.
African states have a crucial role to play in enhancing gender equality
within marriage; indeed, many are bound to do so under international
human rights law.280
At first blush, removal of the state from marriage regulation may
appear to promote a neutral, non-interventionist approach. Other
commentators claim that removal of the state from marriage regulation
simply promotes multiculturalism in pluralist states. Both arguments,
however, are flawed. Leaving customary and religious law to govern
family relations promotes a particular normative approach to governing the
family, one that facilitates rather than challenges women's subordination.
It is far from a neutral and innocuous approach.281 Similarly, it goes beyond
simply promoting multiculturalism. This approach of invalidating state
regulation of marriage in the name of multiculturalism sacrifices women's
equality within the family. 282
B. Equality Within Relationships: The State's Role
1. Human Rights Framework
International human rights treaties such as CEDAW directly address

283
the state's role in promoting equality within marriage. All of the
284
Commonwealth African countries have ratified CEDAW. Article 16 of
CEDAW requires States Parties to "take all appropriate measures to
eliminate discrimination against women in all matters relating to marriage
and family relations" and specifically obligates states to take action in
278. CEDAW, supra note 16, arts. 2, 16.

279. See Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7
HARV. HUM. RTs. J.125,147 (1994).
280. States that have ratified CEDAW without reservation to article 16 are bound to "take
all appropriate measures to eliminate discrimination against women in all matters relating to
marriage and family relations and in particular shall ensure, on a basis of equality of men and
women... ." CEDAW, supra note 16, art. 16.
281. Madhavi Sunder, Piercing the Veil, 112 YALE L. J. 1399, 1403-04 (2003) ("Just as we
'pierce the veil' of corporate sovereignty in cases of injustice or fraud, women activists are
asserting a right to confront oppressive laws and practices otherwise legally shielded in the
name of religion.").
282. See generally Ayelet Shachar, Religion, State, and the Problem of Gender: Newo Modes of
Citizenship and Governance in Diverse Societies, 50 MCGILL L.J. 49 (2005).
283. CEDAW, supra note 16, art. 16.
284. For a list of countries that have ratified CEDAW, see Status of Convention on the
Elimination of All Forms of Discrimination Against Women, U.N. TREATY COLLECTION,
8 4
htt:/ /treaties.un.org/ Pages/ ViewDetails.aspx?src= TREATY&mtdsgfo= IV- &chapter= &
langen (last visited Feb. 21, 2011).

certain areas to promote equality within the family. 285 International human
rights treaties have long recognized the state's interest in regulating
marriage.286 Several treaties require states to establish a minimum age for
marriage, thereby protecting a particularly vulnerable population from the
physical and emotional toll of early marriage.287 The same treaties also
require that states ensure that the parties enter into the marriage with "full
and free consent."2 88
Some states undermine Article 16's obligations to promote equality
within marriage by issuing reservations to the Article.- 89 Although the
CEDAW Committee has made it clear that it considers reservations to
Article 16 contrary to the object and purpose of the treaty,290 such
reservations persist and hamper implementation of the treaty.291 None of
the Commonwealth African countries have entered reservations to Article
16 of CEDAW.292
Regional instruments such as the Protocol to the African Charter on
Human and Peoples' Rights on the Rights of Women ("the Protocol") also
provide protection against gender-based rights violations within the
family.293 Article 6 of the Protocol requires states to "ensure that women
and men enjoy equal rights and are regarded as equal partners in
marriage," including marriage requirements concerning consent, minimum
age, registration of marriages, choice of domicile, choice of name,
94
nationality, nationality and education of children, and property rights.2
285. CEDAW, supra note 16, art 16.

286. See generally Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages, Dec. 10, 1962, 521 U.N.T.S. 231.
287. See, e.g., id. art. 2 ("States Parties to the present Convention shall take legislative action
to specify a minimum age for marriage.").
288. Id. art. 1 ("No marriage shall be legally entered into without the full and free consent
of both parties. . . .").
289. See Vedna Jivan & Christine Forster, What Would Gandhi Say? Reconciling Universalism,
Cultural Relativism and Feminism Through Women's Use of CEDAW, 9 SING. Y.B. INT'L L. 103,108
(2005).
290. See Yakar&Oule Jansen, The Right to Freely Have Sex? Beyond Biology: Reproductive
Rights and Sexual Self-Determination, 40 AKRON L. REv. 311, 323-24 (2007).
291. See Anne F. Bayefsky, General Approaches to the Domestic Application of Women's
InternationalHuman Rights Law, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL
PERSPECTiVES 351, 352 (Rebecca J. Cook ed., 1994) ("Many of the substantive reservations are
wide ranging and profoundly affect the integrity of the Convention.").
292. For a complete list of reservations to CEDAW by country, see Declarations,
Reservations and Objections to CEDAW, U.N. Div. FOR THE ADVANCEMENT OF WOMEN,
http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm (last visited Feb.
21,2011).
293. The following Commonwealth countries have ratified the Protocol: The Gambia,
Ghana, Lesotho, Malawi, Mozambique, Namibia, Nigeria, Seychelles, South Africa, Tanzania,
Uganda, Zambia, and Zimbabwe (although Zimbabwe withdrew from the Commonwealth in
2003). Joseph Olanyo, Uganda: Country Ratifies Protocol on Afican Women Rights, ALLAFRICA
(Aug. 3, 2010), http://allafrica.com/stories/201008031178.html.
294. Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women in Africa, art. 6, July 11, 2003, OAU Doc. CAB/ LEG/66.6 (entered into force Nov. 25,
2005), available at http://www.achpr.org/english/Jinfo/women en.htnd [hereinafter Protocol
on the Rights of Womeni.
Since the early 1990s, international human rights instruments have

recognized the state's interest in prohibiting violence against women, both
inside and outside of marriage. 295 Traditionally, international human rights
law focused on rights violations that occurred in the "public" sphere. 296
Violations of human rights that occurred in the home, or "private sphere,"
at the hands of private actors rather than representatives of the state, were
not subject to scrutiny under human rights law. 297
Because international human rights law generally imposes obligations
on states rather than private actors, 298 scholars and activists struggled in the
1980s and early 1990s to expand the notion of state responsibility to include
violations against women in the so-called private sphere. 299 One such
scholar, Celina Romany, argued for condemning "a human rights
framework that construes the civil and political rights of individuals as
belonging to public life while neglecting to protect the infringements of
those rights in the private sphere of familial relationships." 300
Many of the international human rights instruments that were
promulgated in the early 1990s thus reflected an expanded understanding
of state responsibility that included the responsibility "to ensure the
prevention, investigation, and punishment" of gender-based human rights
violations that occurred in private as well as public realms. 301 International
instruments such as the Declaration on the Elimination of Violence Against
Women (DEVAW) also prohibit states from invoking custom and tradition
as a justification for violence against women. 302
Regional instruments, such as the Protocol on the Rights of Women in
Africa, also address violence against women. Article 4 of the Protocol
provides that states must take steps to "adopt . . . legislative,
administrative, social and economic measures as may be necessary to
ensure the prevention, punishment and eradication of all forms of violence
295. See generally U.N. Secretary-General, Ending Violence Against Women: From Words to
Action, U.N. Sales No. E/06/IV/8 (2006).
296. Id.
297. Id.
298. See, e.g., HILARY CHARLESWORTH & CHRISTINE CHINKIN, THE BOUNDARIES OF
INTERNATIONAL LAW: A FEMINIST ANALYSIS 148 (2000).
299. See Johanna Bond, InternationalIntersectionality: A Theoretical and Pragmatic Exploration
of Women's International Human Rights Violations, 52 EMORY L.J. 71, 88 (2003) (describing the
expansion of state responsibility to include private actors).
300. Celina Romany, State Responsibility Goes Private:A Feminist Critique of the Public/Private
Distinction in International Human Rights Law, in HUMAN RIGHTS OF WOMEN, supra note 291, at
85.
301. See Radhika Coomaraswamy & Lisa M. Kois, Violence Against Women, in 1 WOMEN &
INT'L HUM. RTs. LAW 177, 178 (Kelly D. Askin & Dorean M. Koenig eds., 1999); see also
Declaration on the Elimination of Violence Against Women, art. 4, U.N. GAOR, 3d Comm.,
48th Sess., Res. 48/104, U.N. Doc. A/48/629 (1994) ("States should pursue by all appropriate
means and without delay a policy of eliminating violence against women and, to this end,
should . . . exercise due diligence to prevent, investigate, and . . . punish acts of violence
against women, whether those acts are perpetrated by the State or by private persons." (emphasis
added)).
302. Declaration on the Elimination of Violence Against Women, art. 4, U.N. GAOR, 3d
Comm., 48k" Sess., Res. 48/104, U.N. Doc. A/48/629 (1994).

against women."303 The Protocol also requires ratifying states to "prohibit

and condemn all forms of harmful practices which negatively affect the
human rights of women."304 Although the Protocol explicitly values the
role of tradition and custom in women's lives, it does not allow custom to
excuse violence or harmful practices. 305
2. History and Future of State Involvement in Marriage
For feminists, the state has historically been an inconsistent ally; it is

both the perpetrator of gender-based human rights violations and a
potential source of remedies for those violations.30 6 Although claiming that
the family is a private realm into which the state will not intercede, states
have routinely regulated family matters. 307 In exposing the flaws of the
public/private dichotomy, many feminists have noted that states
selectively intervene in family relations when it benefits the state to do so. 3 08
Historically, colonial authorities and the indigenous male elites with
whom they colluded manipulated marriage using taxes and selective
criminal prosecution in ways that inspire skepticism toward state
regulation of marriage. Colonial authorities and many of the traditional
leaders who collaborated with them sought to manipulate indigenous
marriage for a variety of reasons. In Belgian Africa, for example, colonial
authorities sought to elevate the status of women by discouraging
polygamy.309 To this end, the colonial authorities imposed a "polygamy
tax" under which "men with more than one wife were obliged to pay a
supplementary tax for each wife beyond the first, from the second up to the
thirtieth."310 Belgian colonial authorities later came to regret "liberating"
women from polygamy, concluding that it was "better [to] keep women
under the customary authority of polygamists, . . . than [to] let them run
free and misguided into town and prostitution."311 Concern over
prostitution, in fact, led Belgian colonial authorities to impose a tax on
single urban women. 312
303. Protocol on the Rights of Women, supra note 294, art. 4.

304. Id. art. 5.
305. Bond, Gender, Discourse, supra note 12 (describing in detail the potential impact of the
Protocol).
306. Romany, supra note 300, at 99-100.
307. Fineman, supra note 2, at 34 ("Reproduction clearly entails important societal interests
.... [Tihe state interest in children continues to be used to justify state regulatory interest in
the marital family.").
308. CHARLESWORTH & CHINKIN, supra note 298, at 57 (" [The state can devote some of its
powers to centres of authority in the private sphere that may have no concern with the
unequal position of women or indeed may have an interest in maintaining it, such as the
family... .").
309. Nancy Rose Hunt, Noise Over Camouflaged Polygamy, Colonial Morality Taxation and a
Woman-Naming Crisis in Belgian Africa, in READINGS IN GENDER IN AFRICA 53, 54 (Andrea
Cornwall, ed. 2005).
310. Id.
311. Id.
312. Id. at 56.
British colonial authorities and traditional leaders within British

colonies also provided incentives to marry. In Ghana, for example,
between 1929 and 1933, traditional leaders ordered the arrest of unmarried
women over the age of fifteen.313 The traditional leaders in Asante aimed to
encourage conjugal marriages among our womenfolk" in part to combat
"women's growing uncontrollability."3 1 4 Colonial authorities and male
traditional leaders thus reinforced the view of marriage as a vehicle for
social control over women. Taxes and criminal law became mechanisms to
police the boundaries of marriage within the indigenous African
population.
Although the colonial state's history of marriage manipulation inspires
skepticism among many feminists (myself included), rejecting the state as a
potential agent of change is shortsighted. International and regional
human rights instruments contemplate, and even require, an active role for
the state in ensuring gender equality in marriage. With the expansion of
state responsibility for violence against women, the international trend is
toward greater state involvement in the promotion of equality within
marriages rather than less.315
Many feminists also recognize that the state itself is a perpetrator of
violence against women as well as a potential source of redress for
violations. 316 Although some skepticism of the state is warranted on that
basis alone, minimizing or eliminating the state's role in marriage
regulation runs counter to the international human rights trend toward
greater state responsibility for non-discrimination and violence within the
so-called private domain of the family.
C. Equality Across Relationships: The State's Role
1. Human Rights Framework
United Nations institutions have been slow to recognize same-sex

couples' right to marry.317 Although human rights litigation may prove
313. Jean Allman, Rounding Up Spinsters: Gender Chaos and Unmarried Women in Colonial
Asante, in "WICKED" WOMEN AND THE RECONFIGURATION OF GENDER IN AFRICA, supra note 228,
at 130, 130.
314. Id. at 133 (noting that "the chiefs betrayed much concern about women's growing
uncontrollability, fondly recalling 'the good old days of our ancestors ... [when] no girl or
woman dared to resist when given away in marriage to a suitor by her parents or relatives as
is the case now.' (citation omitted)).
315. In fairness, proponents of eliminating marriage as a legal category would likely argue
that the state must continue to combat gender-based violence in the home through both civil
and criminal laws that do not depend, for their efficacy, on marriage as a status. This is true
for most civil protection order statutes in the United States, which extend to people in an
intimate, but not necessarily conjugal, relationship.
316. See, e.g., Coomaraswamy & Kois, supra note 301, at 178-79.
317. See Aaron Xavier Fellmeth, State Regulation of Sexuality in International Human Rights
Law and Theory, 50 WM. & MARY L. REv. 797, 862 (2008) (providing a comprehensive description
of the international response to rights related to sexual orientation).

useful in compelling states to extend marriage rights to same-sex couples,

recent jurisprudence from the European Court of Human Rights suggests
that this outcome will take some time. In its June 24, 2010, judgment in
Schalk and Kopf v. Austria, the Court ruled that Austria was not obligated to
extend marriage rights to same-sex couples under Articles 8, 12, and 14 of
the European Convention.318 The Court suggested, however, that this
conclusion might change when a sufficient number of European states
recognized the right in their own domestic laws.319 Article 12 of the
Convention guarantees "men and women of marriageable age" the right to
marry, "according to the national laws governing the exercise of this
right." 320 Article 8 concerns the right to respect for private and family life,
and Article 14 prohibits discrimination in the enjoyment of the rights set
forth in the Convention.
A gay Austrian couple, Horst Michael Schalk and Johann Franz Kopf,
challenged the Austrian government's refusal to allow the couple to marry.
In its analysis of Article 12, which guarantees "men and women" the right
to marry, the Court noted that there is no consensus on same-sex marriage
among European states.321 Although it recognized that "the institution of
marriage has undergone major social change since the adoption of the
Convention," 322 the Court noted that national governments were in the best
position to assess the social and cultural meaning attached to marriage and
to evaluate the expansion of marriage to include same-sex couples in a
particular national context. 323 As a result, the Court held that Article 12
imposed no obligation on Austria to afford same-sex couples the right to
marry. In assessing the applicants' discrimination claims under Articles 8
and 14, the Court concluded that Austria's introduction of the Registered
Partnership Act militated against a finding of discrimination. 324
The Court did, however, appear to lay the foundation for a future
finding to the contrary.325 Notably, the Court observed that it "would no
longer consider that the right to marry enshrined in Article 12 must in all
circumstances be limited to marriage between two persons of the opposite
sex." 326 The Court implied that it would recognize a right to marry for
same-sex couples when a European consensus emerged on the issue.327
318. Schalk v. Austria, App. No. 30141/04, 11 46,58 (Eur. Ct. H.R. June 24, 2010).
319. Id.; see also Clive Baldwin, The European Court's Hidden But Hopeful Message on Same-
Sex Marriage, THE GUARDIAN (June 29, 2010, 1:45 PM), http://www.guardian.co.uk/law/
2010/jun/29/europe-rules-same-sex-marriage-austria ("But for now the court has held back,
hinting strongly that it will recognize the right to same-sex marriage, as a right under the
convention, when a 'European consensus' exists . . . .").
320. Convention for the Protection of Human Rights and Fundamental Freedoms, art. 12,
Nov. 4, 1950, 213 U.N.T.S. 221, 234.
321. Schalk, App. No. 30141/04, 1 58.
322. Id.
323. Id. 11160-61.
324. Id. ] 102-06.
325. See Baldwin, supra note 319.
326. Schalk, App. No. 30141/04, 61.
327. See Baldwin, supra note 319.
Some human rights organizations, in fact, suggest that Schalk represents an

important partial victory for champions of marriage rights for same-sex
couples. 328
Consensus concerning the familial rights of same-sex couples will
undoubtedly emerge more quickly in Europe than in Africa. Within Africa,
South Africa stands alone in its official recognition of human rights related
to sexual orientation. 329 Robert Mugabe, President of Zimbabwe, has
openly displayed hostility and animus toward gays and lesbians in that
country.330 President Museveni of Uganda has similarly derided gays and
lesbians in public comments. 331 Rights groups have accused government
representatives in Zimbabwe, Namibia, Zambia, and Botswana, among
others, of state-sponsored homophobia. 332 In May 2010, the Malawian
government imprisoned two men that it accused of having a sexual
relationship.3 33 LGBT activists throughout the region report being targeted
for violence and harassment for their work on behalf of the LGBT
community.3 34
The value of the human rights framework extends beyond strategic
litigation. Human rights advocates will continue to use the human rights
framework for public education campaigns designed to raise awareness
about LGBT rights. These rights-based campaigns will, over time, increase
tolerance and lay the foundation for more open dialogue concerning
marriage rights for same-sex couples. Although this approach is
susceptible to charges of incrementalism, it is the most politically feasible
strategy given the reality of widespread, often officially sponsored
homophobia in the region.
Civil society and the state must couple human rights awareness
campaigns with long-term law reform efforts. These law reform efforts
should build upon the current plural legal system, expanding the diversity
of marriage options over time. When successful human rights advocacy
and political will eventually coalesce, marriage options may be expanded to
include marriage for same-sex couples in the region, as is the case in South
Africa.
328. See, e.g., id.

329. See HUMAN RIGHTS WATCH, supra note 118, at 3 (distinguishing South Africa from the
Southern African region as a whole).
330. Mugabe has been openly homophobic since 1995, justifying "his intolerance with the
claim that homosexuality is 'un-African' [and] describing it as a disease 'coming from so-called
developed nations."' Id. at 1.
331. See Jonathan Clayton, Same-Sex Marriages Given Blessing by South Africa, THE TIMES,
Dec. 2, 2005, at 47 (quoting Museveni as saying, "Look for homosexuals, lock them up and
charge them.... God created Adam and Eve. I did not see God creating man and man.").
332. See, e.g., HUMAN RIHTS WATCH, supra note 118, at 2.
333. Barry Bearak, Gay Couple in Malawi Get Maximum Sentence of 14 Years in Prison, N.Y.
TIMES, May 21, 2010, at A6.
334. See generally HUMAN RIGHTS WATCH, supra note 118.

2. Levels of State Engagement
The state has an obligation to refrain from discrimination in the

promotion of marriage and its attendant benefits.335 Over the last decade,
activists and scholars have proposed a number of ways in which states
might achieve equal treatment of intimate relationships. Three approaches
have dominated the public discourse; each attempts to moderate state
regulation to varying degrees.
a) Civil Unions for Same-Sex Couples
First, a state might decide to create a new category of relationships,

such as civil partnerships. A state might create civil partnership status as a
complement to marriage, affording same-sex couples the opportunity to
register a civil partnership but not a marriage. 336 The merits of this
approach have been hotly debated in a number of countries.33 7 Opponents
argue convincingly that recognition through a type of "separate-but-equal"
scheme does little to combat the bias against same-sex partnerships.338
There is symbolic and expressive value in including same-sex unions
within the legislative definition of marriage. In the words of two South
African scholars who view civil partnerships as a poor substitute for
marriage, "Within a multi-cultural society such as South Africa, marriage
has diverse historical roots, a particular status, and a range of religious,
social, and spiritual meanings, with varying forms of concomitant
rituals."3 39 As a result, there is significant expressive value in placing same-
sex and opposite-sex unions on equal footing.
b) Elimination of Marriage as a Legal Status
Second, the state might remove itself from the marriage business
altogether. Such a system would abolish marriage as a legal category and
allow people to use contracts to define the parameters of their
335. For a thorough justification of this reasoning, see Nelson Tebbe & Deborah A. Widiss,
Equal Access and the Right to Marry, 158 U. PA. L. REV. 1375, 1380 (2010).
336. See Pierre De Vos & Jaco Barnard, Same-Sex Marriage, Civil Unions and Domestic
Partnershipsin South Africa: CriticalReflections on an Ongoing Saga, 4S. AFR. L.J. 795, 810 (2007).
337. See, e.g., Stephen Collins, Same-Sex Couples to Get Legal Recognition Next Year, IRISH
TIMES, Nov. 1, 2007, at 1; Adam Wagner, Has the Time Come for Gay Marriage in the UK?, THE
GUARDIAN (uly 21, 2010, 7:24 PM), http://www.guardian.co.uk/law/2010/jul/21/gay-
mariage.
338. See De Vos & Barnard, supra note 336, at 811 (suggesting that in South Africa, "the
creation of an apartheid-style, separate 'civil partnership' for same-sex couples merely
confirmed that the law did not consider their relationships equal in status and worthy of equal
concern and respect").
339. David Bilchitz & Melanie Jud ge, For Whom Does the Bell Toll? The Challenges and
Possibilities of the Civil Union Act for Family Law in South Africa, 23 S. AFR. J. HUM. RIS. 466, 472
(2007).
relationships.340 A handful of feminists and LGBT advocates in the global

North, including most notably Martha Fineman, have advanced this
approach. Those seeking to abolish marriage have argued that the
institution is so heavily plagued by sexism and heterosexism that it is
beyond redemption. 4
With its history of gender-based oppression, it is easy to see why some
scholars would like to dismantle the marriage institution in the United
States. The common law history of marriage in the United States
demonstrates the patriarchal nature of the institution. As Fineman notes,
the Reconstruction-era U.S. Supreme Court strictly defined the terms of the
marital relationship:
The natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of civil
life. The constitution of the family organization, which is founded
in the divine ordinance, as well as in the nature of things, indicates
the domestic sphere as that which properly belongs to the domain
and functions of womanhood. 342
This view of marriage and women's roles within it led to the denial of
women's property and contract rights. 343 In more recent times, courts have
relied on the sanctity of the institution of marriage to deny women legal
remedies when they have been the victims of domestic violence and marital
rape. 344 "Seen through this lens, the virtues of doing away with marriage as
a legal category are clear: it would protect freedom of expression, intimate
association, and cultural pluralism while enhancing equality between and
within intimate associations." 345 Proponents also argue that eliminating
marriage as a legal status would promote equality for those in same-sex
relationships who are excluded from the institution in many parts of the
world.346
According to Fineman, " [w]ith the recognition of equality between
women and men, we assume parity in bargaining capacity on the part of
individuals entering these relationships and no longer see a need for the
340. See, e.g., Nastich, supra note 2, at 165-66.

341. See, e.g., Fineman, supra note 2, at 29.
342. Bradwell v. Illinois, 83 U.S. 130 (1873) (enforcing the legal doctrine of coverture by
holding that a state law preventing a woman from practicing law did not violate the
Fourteenth Amendment).
343. Amanda L. Stubson, Giving Victims a Voice: The Doctrine of Forfeiture by Wrongdoing as a
Remedy to the Silencing Effect of Crawford, 32 HAMUNE L. REV. 265, 290 (2009) ("Under
coverture, a married woman had no property rights, and could not contract, sue, or be sued
without the consent of her husband.").
344. See Nancy Kaymar Stafford, Permission for Domestic Violence: Marital Rape in Ghanaian
Marriage, 29 WOMEN's RTs. L. REP. 63, 64; Atinmo, supra note 152, at 82 ("Ultimately, women's
injuries from domestic abuse reflect the effects of aggressive masculinity, but society feels that
the sanctity of marriage is more important than a woman's physical safety.").
345. METZ, supra note 8, at 12.
346. See, e.g., Elizabeth S. Scott, A World Without Marriage,41 FAM. L.Q. 537, 540-41 (2007).

protective intervention of the state." 347 Fineman proposes that people

should regulate their own relationships through contract, noting that "[t]his
means that sexual affiliates (formerly labeled husband and wife) would be
regulated by the terms of their individualized agreements, with no special
rules governing fairness and no unique review or monitoring of the
negotiation process."MB Fineman anticipates that "ameliorating doctrines
would fill the void left by the abolition of this aspect of family law." 3 49
Assuming arguendo that Fineman's premise is true in the United States,
Commonwealth African women enjoy far less bargaining parity. In the
context of Commonwealth Africa, feminists are struggling to achieve
formal equality in many areas, making the assumption of bargaining parity
inapposite. In this context, wide-scale, individualized bargaining over the
rights and duties of intimate relationships as a substitute for state
sanctioned marriage would subject many women to the vagaries of
pronounced inequality in contract negotiation. Although formal,
systematized marriage disadvantages women within the region, contract
negotiations over marriage particularities would have a similar, or perhaps
more deleterious, effect.
Perhaps uncontroversially, Fineman's theory is a contextualized,
situated one. It is informed by local geographic and socioeconomic realities
and envisions a state that is both well-financed and well-functioning. It is
fundamentally concerned with the excesses and overreaching of a strong
state. In contrast, some states in Commonwealth Africa are weak states in
terms of human rights enforcement and general administrative functioning.
Central governments in the region lack the resources to provide the type of
benefits, such as childcare and health insurance, which would theoretically
facilitate implementation of Fineman's model.
Other scholars have cautioned about the potential influence of illiberal
proponents of deregulation. Linda McClain, for instance, describes how the
proposal to eliminate the state's role in the regulation of marriage has been
350
co-opted in the U.S. by conservative proponents of religious autonomy.
Similarly, within Commonwealth Africa, customary and religious leaders
would likely welcome the opportunity to exercise exclusive jurisdiction
over marriage. It would be unreasonable and contrary to the spirit of
modern human rights jurisprudence, however, for the state to so abdicate
its responsibility over the promotion of gender equality within the family to
authorities with illiberal aims.351
347. Fineman, supra note 2, at 53.

348. MARTHA FINEMAN, THE AUTONOMY MYTH 134 (2004).
349. Id. at 135.
350. See Linda McClain, Marriage Pluralism in the United States: On Civil and Religious
Jurisdictionand the Demands of Equal Citizenship 8 (Bos. Univ. Sch. of Law, Working Paper No.
10-14, 2010), available at http://www.bu.edu/law/faculty/scholarship/
workingpapers/2010.html.
351. See generally, Johanna E. Bond, Constitutional Exclusion and Gender in Commonwealth
Africa, 31 FORDHAM INT'L L.J. 289 (2008).
Fineman's very recent scholarship suggests that she too has become
wary of minimizing the role of the state because doing so privileges the
value of autonomy over equality. She notes that "[i]n recent years in
America the possibilities for a robust and expansive vision of equality seem
to have eroded, worn away by the ascendency of a narrow and
impoverished understanding of autonomy." 352 This may call for more state
intervention into the marriage institution: "If . . . we were to start our
discussions of what is the proper relationship between state and individual
with the primary objective being that of ensuring and enhancing a
meaningful equality of opportunity and access, we may see a need for a
more active and responsive state."353
Tamara Metz has also proposed dismantling marriage in favor of an
"intimate caregiving union status." 354 Metz argues that current state
involvement with marriage is problematic on two primary grounds. First,
she is concerned with "the role the state assumes when it wields final
control over the public meaning and use of the marital label."355 Second,
she objects to the use of marriage as the vehicle through which the state
protects and supports caregiving. 356
Yet Metz's first concern that the state is the sole authority for
establishing the parameters and beneficiaries of marriage, while true in the
United States, does not reflect the reality of the plural marriage systems in
Commonwealth Africa. Within these systems, in which statutory law
operates alongside customary and religious marriage law, the state plays a
less significant role as the moral authority governing marriage. Traditional
leaders and religious leaders play a role in facilitating and legitimizing non-
statutory marriage regimes, thereby denying the state a monopoly on
marriage. 357 Traditional leaders have considerable leeway in defining and
rewarding marriage.358 I have argued elsewhere, in fact, that traditional
and religious leaders have too much authority to govern marriage, making
women vulnerable to oppression and discrimination within the marital
relationship. 35 9
352. Martha Fineman, The Vulnerable Subject and the Responsive State 14 (2010)
(unpublished manuscript), available at http://ssrn.com/abstract=1694740.
353. Id. at17.
354. METZ, supra note 8, at 114.
355. Id. at 115 (elaborating that "[wjhen government serves as the controlling public
authority vis-a-vis marriage, it assumes the role of ethical authority, a role for which it neither is
nor ought to be suited").
356. Id. at 128 (observing that "[wihen marital status is the primary avenue for the flow of
legal benefits, many families are left out or unduly disadvantaged").
357. See WOMEN & LAW IN S. AFR. RES. TRUST, IN SEARCH OF JUSTICE: WOMEN AND THE
ADMINISTRATION OF JUSTICE INMALAWI 20 (2000) ("Besides being involved in the contracting of
the marriage, the marriage counselors are also intended to mediate between the spouses in
cases of matrimonial trouble. Legally, the counselors are required and necessary by way of
formality in relation to customary law marriages.").
358. See Christine Mary Venter, The New South Afrcan Constitution: Facing the Challenges of
Wornen's Rights and Cultural Rights in Post-Apartheid South Africa, 21 J. LEGIS. 1, 3 (1995).
359. Bond, Gender, Discourse, supra note 12, at 559-60 (describing the extent of power that
local tribal leaders possess, and their reluctance to embrace efforts to protect women's fights).

While Fineman and Metz's main arguments for marriage deregulation

appears to rely on a particular notion of strong statehood, other aspects of
their models may have more resonance in the African context. Metz's
second major concern relates to the state's use of marriage to determine
financial and other benefits of marriage. 360 Like Fineman, she contends that
marriage is a poor proxy for rewarding caretaking, and the task of defining
marriage distracts from important, broader policy goals. 361 Fineman
identifies the state's goals in marriage promotion and argues that those
goals would be more easily accomplished through targeted, functional
legislation. She asserts that the relationship between caregiver and
dependent should replace the gendered, spousal dyad as the focus of the
state's support within family law. 362 Commenting on Fineman's proposed
focus on caregivers and dependents, Mary Lyndon Shanley observes that
"[tjhe kinds of measures that would foster autonomy for adults and enable
them to provide for children in their care include health insurance,
affordable and quality child care, child allowances of the kind common in
Europe, flexible workplace hours, and paid parental leave for both men and
women."3 63 Fineman asserts that the state must first meet the needs of
dependents and their caregivers, and then adults can order their intimate
lives through contract.3M
Unlike concern about a state monopoly on marriage or assumptions
about women's unfettered ability to negotiate contracts, Fineman and
Metz's concerns surrounding caregiving have particular relevance to the
African region. Fineman and Metz both suggest that the state could more
directly serve the needs of caregivers by abandoning the use of marriage as
a proxy. Within Commonwealth Africa, caregiving networks have often
involved kinship ties that extend beyond the spousal dyad. The scourge of
HIV/AIDS has caused a devastating number of children to be orphaned,
complicating the landscape of family care. 365 Grandparents and other
family members have attempted to fill the gap left by parental AIDS deaths.
The Commonwealth African state should recognize this diversity of
caregiving and look for ways to support caregivers that reach beyond the
marital relationship. Although Commonwealth African states have not
historically had the resources to directly support parental - or other -
360. METZ, supra note 8, at 128 ("When marital status is the primary avenue for the flow of
legal benefits, many families are left out or unduly disadvantaged.").
361. Id. ("The focus on marriage directs us toward the impossible task of defining marriage
and distracts us from the matter of real import - how the state can foster the public welfare
goals associated with intimate caregiving and stave off the potential inequalities that occur
within its folds.").
362. Fineman, supra note 2, at 30 ("1 argue that for all relevant and appropriate societal
purposes, we do not need marriage and we should abolish it as a legal category, transferring
the social and economic subsidies and privilege it now receives to a new family core
connection - that of the caretaker-dependent.").
363. Shanley, supra note 23, at 201.
364. See Fineman, supra note 2.
365. Todres, supra note 32, at 424 (noting that "[tlhe percentage of orphans in sub-Saharan
Africa whose parents died because of AIDS increased from 3.5% in1990 to 32% in 2001.").
caregivers, the increasing number of orphans in many countries will force

states to consider policies that directly or indirectly support a diversity of
caregivers.
The models proposed by Fineman, Metz, and others offer a compelling
alternative to marriage as we know it. The models promise to promote
equality by dismantling a historically patriarchal institution and attempting
to ensure the well-being of vulnerable dependents. Although in many
respects, the theory is inapplicable within the region, it offers important
insights into state support for diverse forms of caregiving, an issue that has
become increasingly relevant with the soaring number of parental AIDS
deaths in Commonwealth Africa.
c) Marriage for All
Third, the state could extend marriage rights to all. Although the
specific meanings and goals of marriage differ within communities and
among individuals, marriage has expressive power. 366 Marriage sends a
cultural message, whether it is the private expression of love and
commitment between two people or the public recognition of new linkages
between two families. It is the expressive force of marriage that makes it
difficult to tinker with the institution. The same expressive force and
cultural meaning, however, suggests that the state has an opportunity to
promote equality by making the institution accessible to same-sex couples.
Although the "marriage for all" approach has the benefit of placing
same-sex and opposite-sex couples on equal footing, the approach fails to
challenge the sexist aspects of marriage as an institution. In response to this
concern, South Africa adopted a slightly modified approach to the
extension of marriage rights to all. In the 2006 Civil Union Act, the South
African Parliament created two categories of legally cognizable
relationships. 367 All couples, whether same-sex or opposite-sex, may
choose to solemnize their relationship as either a marriage or a civil
partnership. 368 The Act, therefore, accomplishes dual objectives in that it
"serves both to widen the ambit of marriage to include same-sex couples
369
whilst de-centering marriage as the primary social form." Not only do
same-sex couples have the option to marry, but opposite-sex couples, who
may reject marriage and the traditional sex roles it signifies, may elect a
civil partnership.370
366. Fineman, supra note 2, at 37.

367. Bilchitz & Judge, supra note 339, at 479.
368. Id.
369. Id. at 476. There is, however, a conflict with the Marriage Act, which applies only to
heterosexual couples and which is still on the books in South Africa. Failure to repeal this law
upon passage of the Civil Union Act creates a troubling legal ambiguity. Id. at 487.
370. Id. at 486.

IV. PROMOTING POSITIVE INTERVENTION BY THE STATE
A. Strategies for Promoting Equality Within Relationships:

Establishing a Legislative Floor for Marriage Rights
I advocate preserving the basic structure of the plural marriage system,

but I argue strongly for substantive changes to marriage law that apply
across legal systems. States should enact legislation that establishes a floor
for rights within marriage that applies whether the marriage was
contracted according to statutory, customary, or religious law. Tanzania's
Law of Marriage Act (LMA) provides an example of legislation that was
designed to promote gender equality within marriage when it was enacted
in 1971.371 The LMA partially integrated the plural marriage law system in
Tanzania by establishing statutory provisions that applied to all marriages
regardless of whether the marriage was contracted according to statutory,
customary, or religious law.
Tanzanian legal scholar Bart Rwezaura notes that one objective of the
LMA was "to improve the status of married women and provide greater
protection for children." 372 The LMA is limited in its reach and falls short
of equality promotion in several areas.373 For its time, however, it was a
progressive effort to standardize women's rights within marriage. "The
Law of Marriage Act of 1971, which was hailed as a milestone in integrating
personal laws and set Tanzania as a pioneer in Commonwealth Africa in
gender rights, gives women some civil rights in marriage and divorce."374
The LMA, for example, established a minimum age for marriage, although
the age differs for boys and girls.375 Significantly, the Act preserved the
plural legal system for marriage but imposed core requirements that apply
to all marriages and that were designed to improve the status of women
within marriage.
South Africa's recent Recognition of Customary Marriages Act also
seeks to apply certain statutory requirements to marriages contracted
according to customary law. 376 South African legal scholar Chuma
Himonga notes that one primary goal of the "reform of customary marriage
law was to bring this system of law in line with the Constitutional
provisions on equality and non-discrimination and to create an equitable
371. See infra note 372 and accompanying text.

372. Bart Rwezaura, Tanzania: Building a New Family Law Out of a Plural Legal System, 33 U.
LoUISVILLE J. FAM. L. 523, 526 (1995).
373. See Jennifer L. Rakstad, The Progress of Tanzanian Women in the Law: Women in Legal
Education, Legal Employment and Legal Reform, 10S. CAL. REV. L. & WOMEN'S STUD. 35, 91 (2000).
374. GENDER AND LAW: EAST AFRICA SPEAKS 54 (Gita Gopal and Maryam Salim, eds. 1998)
(citation omitted).
375. CLARENCE KlPOBOTA AND SARAH LoUW, TANZANIA HUMAN RIGHTS REPORT 2008:
PROGRESS THROUGH HUMAN RIGHTS4 (2009).
376. See generally Penelope E. Andrews, "Big Love"? The Recognition of Customary Marriages
in South Africa, 64 WASH. & LEE L. REV. 1483 (2007).
20 11] Culture, Dissent, and the State 53
marital relationship for men and women." 3m The Act officially recognizes
customary marriages and imposes requirements such as consent,
recognition of women's legal capacity, property rights for women in
marriage, and protection for women in the dissolution of marriage. 78
Among other things, "the Act has abolished the customary law method of
dissolving marriages out of court by the families of the spouses and by
other traditional institutions." 379
Tanzania and South Africa provide examples of important statutory
interventions into the realm of customary and religious marriage law.
Notably, neither statutory scheme attempts to abolish customary or
religious marriage. An abolitionist approach would surely fail given the
high rates of customary marriage in both countries. Abolition would also
fail to preserve the positive, non-discriminatory aspects of culture and
customary law.380 The legislative floor approach therefore attempts to
create a minimum standard for women's rights within marriage. It
preserves the option of marrying according to customary law or religious
law but stipulates specific ways in which such non-statutory marriages
must conform to gender equality standards. One commentator, Ann Estin,
has argued that courts and legislators should "allow individuals greater
freedom to express their cultural or religious identity and negotiate the
consequences of these commitments," while at the same time "protect[ing]
the rights of individuals to full membership and participation in the larger
political community."381 The legislative floor model attempts to mediate
these competing objectives in a way that is both pragmatic and achievable,
as well as protective of gender equality and cultural identity.
Applying the "rights floor" approach, a state would have a strong
justification for standardizing rights that pertain to bodily integrity. These
standards for physical safety within marriage would apply across marriage
systems. In other words, they would apply regardless of the type of
marriage into which a couple entered. In practice, this standardization
occurs through criminal laws prohibiting assault or family violence.
Explicit recognition of these rights within the marriage law, however, might
encourage prosecution and enforcement. The state would also be justified
in providing civil remedies for intimate violence, regardless of the type of
marriage into which a couple had entered.
Similarly, the state would be justified in standardizing, or integrating,
financial rights within marriage and at its dissolution. The state, for
example, could dictate property rights at divorce and apply those universal
standards to civil, customary, and religious marriages. South Africa's
Registration of Customary Marriages Act applies a statutory property
377. Himonga, supra note 11, at 263.

378. Id. at 264-66.
379. Jd. at 266.
380. See Bond, Gender, Discourse, supra note 12.
381. Ann Laquer Estin, Embracing Tradition: Pluralism in American Family Law, 63 MD. L.
REV. 540, 542 (2004).

54 YALE HUMAN RIGHTS & DEVELOPMENT L. [

[Vol. 14
rights standard to customary marriages. 382 The state could also standardize
women's rights to inheritance, which vary significantly across countries
and across marital systems. Although Tanzania integrated much of its
marriage law through the LMA, it failed to standardize inheritance rights.
Ghana, in contrast, has not integrated its marriage laws, 383 but it passed a
uniform intestate succession law in 1985.384 Human rights activists and
others in Tanzania, including the Tanzanian Law Reform Commission,
have pressed for an integrated intestate succession law similar to
Ghana's. 385 Parliament, however, has yet to enact an integrated inheritance
law.
Finally, states would also have compelling reasons to impose some
standard requirements on the entry into and exit from marriage. Here, the
state is justified in regulating minimum age and voluntariness
requirements for marriage. As with the other categories of rights, standard
requirements for eligibility to marry would apply across marriage systems.
Within this last category of rights, however, communities would be free to
establish other requirements for a valid customary or religious marriage as
long as those requirements did not infringe on gender equality rights.
B. Strategies for Promoting Equality Across Relationships: Increase

Marriage "Menu" Options
The normative value of marriage is deeply entrenched in much of

Commonwealth Africa. As a result, proposals to eliminate marriage as a
legal status, which have arisen primarily in the global North, will have little
purchase in contemporary Commonwealth Africa. Eliminating a statutory
or civil law marriage option would simply result in an increase of
customary or religious marriages, where illiberal norms sometimes function
to subordinate women. I argue that rather than narrow the marriage
options, the state should take the lead in increasing and eventually
diversifying the available options.
The "menu" approach to marriage, in which couples may choose
among a number of categories to solemnize their relationship, makes sense
both as good policy and as a viable regional approach. In the plural legal
382. See supra notes 377-79 and accompanying text.

383. In Ghana in 1963, "a Bill on Uniform Marriage, Divorce and Inheritance rules was
published but never enacted." Wanitzek, supra note 260, at 77.
384. Gordon R. Woodman, Ghana Reforms the Law of Intestate Succession, 29 J. AFR. L. 118,
118 (1985); see also, Kuenyehia, supra note 121, at 396. But see Fenrich & Higgins, supra note 5, at
295-340 (noting significant implementation problems with Ghana's intestate succession law).
385. LAW REFORM COMM'N OF TANZ., REPORT OF THE COMMISSION ON THE LAW OF
SUCCESSION/INHERITANCE 84 (1995) ("A uniform law of Succession/Inheritance should be
enacted in Tanzania, such a law should be moderated on the constitutional principles and
guarantees to such an extent that it will recognize existing tribal, customary and religious
differences but at the same time moderating those practices and procedures in the various
tribal, religious and customary laws which are inconsistent with principles of justice and
equity.").
systems of Commonwealth Africa, couples generally choose to be married

under statutory, customary, or religious law. In this sense, the menu
approach already exists. Over time, as human rights advocacy facilitates
acceptance of marital equality, the menu could be expanded to include
other options such as civil partnerships or same-sex marriage.
South Africa provides a blueprint for other countries in the region that
achieve sufficient political momentum to expand the marriage menu
options for same-sex couples. South Africa's Civil Union Act opens up
marriage to same-sex couples at the same time that it provides a civil
partnership option for anyone who objects to marriage based on its sexist
and heterosexist history.386 As David Bilchitz and Melanie Judge remark:
[T]he achievement of the Civil Union Act is not that it guarantees

any particular social result but rather that it opens up the space for
two important goals to be achieved: first, the recognition of the
equal status of lesbian and gay relationships; and secondly, the
potential de-centering of marriage and the according of respect and
recognition to a diverse range of familial forms.38 7
Human rights advocates outside of South Africa have begun to lay the
foundation for broader acceptance of same-sex marriage, and for LGBT
rights more generally. Although acknowledging the public attacks on
LGBT communities in the region by national political leaders in Swaziland,
Namibia, Kenya, Zambia, and Uganda,388 Marc Epprecht cautions against
overstating the extent of homophobia within the region. Epprecht observes
that in Commonwealth Africa, "blanket denunciations of state-sanctioned
homophobia obscure some sophisticated cultural mechanisms that mitigate
the impact of homophobic rhetoric, as well as some remarkable successes in
achieving gay rights." 389
Neville Hoad describes how anti-gay and nationalistic rhetoric combine
to limit LGBT rights in the region. 390 "Certain strands of African
nationalism are explicit in their rejection of lesbian and gay citizenship
rights . . . . This rejection is frequently legitimized as a defense of national,
but more particularly racial, authenticity." 391 However, Hoad notes that
some LGBT organizations in the region "have attempted to reclaim
'anthropological' traditions of African sexualities that are appropriable
under the sign 'homosexuality." 392 He suggests that these groups have
386. Bilchitz & Judge, supra note 339, at 468.

387. id. at 468.
388. MARC EPPREcHT, HUNGOCHANI: THE HISTORY OF A DISSIDENT SEXUALITY IN SOUTHERN
AFRICA 4 (2004).
389. Id. at 6.
390. NEVILLE HOAD, AFRICAN INTIMACIES: RACE, HUMUSEXUALITY, AND GLOBALIZATION 75
(2006).
391. Id. at 75.
392. Id.

argued that homophobia, rather than homosexuality, is the "corrupting

Western import." 393 According to this view, "the entrenchment of human
rights discourse through at least fifty years of anti-apartheid nationalist
struggle is firmly on the side of lesbian and gay South Africans." 394 Indeed,
throughout the region, national advocacy groups, sometimes with the help
of international organizations, are beginning to make incremental progress
toward recognition of LGBT rights. This awareness-raising and human
rights advocacy may, over time, create enough momentum in the region to
expand marriage menu options to include marriage or civil partnerships for
the LGBT population beyond South Africa, the regional leader in this area.
C. Resonant Custom as a Vehicle for Promoting Equality Norms
Commentators must resist the popular and overly simplistic view that
characterizes marital relationships in Commonwealth Africa as regressive
and those in the West as progressive. Although several important
contemporary political leaders in the Commonwealth remain openly hostile
to state recognition of the rights of same-sex individuals and resistant to the
aggressive promotion of women's rights within marriage, scholars and
activists must interrogate customary law and practice to expose the ways in
which tradition may actually support the re-envisioning of familial roles and
responsibilities.
Despite the hurdles concerning social acceptance of gay and lesbian
relationships, several features of family life in Commonwealth Africa may,
in fact, lend support to eventual broadening of the marriage category. As
discussed above, marriage in Commonwealth Africa has historically
focused less on the relationship of two individual spouses.395 Instead,
marriage marks the linkages between two families.396 Proposals advocating
for state recognition of a range of relationships beyond conjugality,
however, may ultimately resonate with some Commonwealth African
cultural traditions that de-emphasize the conjugal relationship as the center
of family life.
In addition, unconventional relationships in the region - both conjugal
and non-conjugal - often developed as a response to social, cultural, and
economic conditions. 397 William Eskridge, for example, describes the
393. Id. (quoting one LGBT organization as stating that "[t]he minds of many of our
Southern African political leaders remain thoroughly colonized by Victorian dogma which
they now have the audacity to claim is the backbone of our African cultural heritage").
394. Id. at 79-80.
395. Bdlair, supra note 35, at 568.
396. See, e.g., Adjetey, supra note 34, at 1355.
397. See, e.g., Megan Vaughan, Problems in the Reconstruction of the History of the Family as an
Economic & Cultural Unit, in READINGS IN GENDER IN AFRICA, supra note 309, at 119, 122
("[C~hinjira in Southern Malawi, a relationship between two women formed independently of
their respective families, tells us something about the effects of large-scale, long-term economic
and social change .. .. It can be seen as a response not only to the constraints of 'kinship' .. .
but also as a response to very new economic circumstances and different levels of
experience of a nineteenth century Nigerian woman of the Igbo ethnic

group, who accumulated enough wealth to become a female husband to
nine other women. 398 Female sex workers in colonial-era Nairobi,
developed pseudo-familial relationships designed to protect them
financially. 399 At times, sex workers did this by developing relationships of
"'blood brotherhood' (undugu wa kuchanjana). . . . What usually happened
was that a man and a woman came to an arrangement whereby afterwards
they helped each other as brother and sister." 400 Other women in Nairobi,
many of whom had accumulated property but had no children, adopted
"woman to woman" marriages "to ensure heirs to inherit their wealth." 401
In many cases, the motivation for this coupling was to keep property in the
patrilineal line.402
Caretaking of children in Commonwealth Africa often involves
extended family members. 403 This accepted caretaking role for extended
family members might make it easier for Commonwealth African states to
recognize and value caretaking that goes beyond the marital relationship.
With limited governmental resources in many of these countries, however,
states are unlikely to provide financial incentives or otherwise compensate
those extended family members for their role in caretaking.
Reform efforts that seek to establish connections between custom and
proposed reforms are more likely to succeed than those that are perceived
to be imports from the West. Aspects of customary law support a broader
understanding of family, one that de-centers the spousal dyad. Rights
activists must frame the discourse about reform around those areas of
resonance.
CONCLUSION
The choice of an intimate partner is central to individual identity.

Although states have historically limited legal recognition of intimate
partners to opposite-sex marriage partners, there is a global shift toward
recognition of a diversity of intimate relationships. Where states have been
reluctant to acknowledge this shift, activists have called into question the
state's role in the regulation of intimate relationships.
I seek to geographically limit the application of this critique of the
state's role in marriage regulation. I advocate for the preservation of the
stratification.").
398. Eskridge, supra note 17, at 1419-20.
399. See Janet M. Bujra, Women 'Entrepreneurs' of Early Nairobi, in READINGS IN GENDER IN
AFRICA, supra note 309, at 123, 129.
400. Id.
401. Id. at 130.
402. Id.
403. See Bonthuys & Erlank, supra note 267, at 75 ("Many African children do not live with
their parents, but with grandparents or other family members. Where parents are in full-time
employment and do not have money to pay for day-care, children are often left in the care of
relatives or neighbors, or even other children.").

state's regulatory role in marriage in Commonwealth Africa for several

reasons. First, the state has an obligation to promote equality within
individual relationships. Within plural legal systems, removing the state
from marriage regulation and thereby eliminating the civil marriage option
would cede control over marriage to local communities. Because
customary marriage law often discriminates against women, the absence of
a statutory alternative harms women. Given the continued purchase of
customary law in the region, states should thus retain the structure of the
plural legal system and establish a statutory core of marriage rights that is
applicable across all prevailing marriage regimes.
Second, the state must promote equality among intimate relationships,
including same-sex relationships. Because the political climate in
Commonwealth Africa remains largely hostile to the rights of the LGBT
community, reform must be incremental. The plural legal system in most
Commonwealth African countries allows couples to choose statutory,
customary, and in some cases, religious law as the governing marriage law.
This "menu" approach lends itself to a diversity of marriage options. States
should build on the architecture of the plural legal system to increase
"menu" options over time, including marriage options for same-sex
couples.
Finally, the state should explore ways in which marriage reform reflects
or builds upon existing value systems. Within the region, extended family
systems have traditionally tended to de-center the spousal dyad.
Moreover, the tragedy of HIV/AIDS deaths has required that extended
family take on even greater care-taking roles within the family.
Historically, individuals have entered into non-traditional relationships,
some of them same-sex, for a variety of economic and social reasons. States
and civil society should explore the areas of resonance between custom and
reform efforts.
Marriage is a rapidly evolving global concept. Events of the last few
months and years demonstrate that the definition of marriage is dynamic.
As demonstrated by the example of Commonwealth Africa, theoretical
critiques that call for a diminution or elimination of the role of the state in
regulating marriage must be understood as context-specific. In much of the
world, the state continues to have a vital role to play in promoting equality
within and among relationships.
International Journal of Law, Policy and the Family 23, (2009), 133144
doi:10.1093/lawfam/ebn021
Advance Access Publication 26 February 2009
L AW , P L U R A L I S M A N D T H E F A M I L Y
I N K E N YA : B E Y O N D B I F U R C AT I O N O F
F O R M A L L AW A N D C U S T O M
WINIFRED KAMAU
ABSTRACT
Family law in Africa has been is characterized by pluralism where customary,

religious and state laws co-exist within the same social context. However, this
plurality is marked by a false dichotomization of formal law and custom.
Under the law/custom dichotomy, people are deemed to be governed by one
system of law to the exclusion of all others and to order their family lives
within the boundaries of that system. However, this bifurcation runs counter
to the reality on the ground, as peoples family lives in Africa constantly
traverse the boundaries of legal systems. This is particularly true of
cohabitation relationships, which defy conventional categorizations of family
law systems. This article examines the ways in which prevailing legal policies
and judicial attitudes in Kenya have impacted on womens claims to property
and maintenance upon breakdown of the cohabitation relationship. The
article argues that the bifurcatory approach stems from an erroneous
conceptualization of customary law, manifested in a weak form of legal
pluralism that does not give effect to peoples experience of the intersection
of legal orders. In thinking about reform of family law in the African context,
there is need for an approach to legal pluralism that pays attention to peoples
perception of their normative context and how such perception shapes their
attitudes and actions. This would help in developing a legal framework that
is more in tune with peoples lived reality, particularly that of women.
INTRODUCTION
Post-colonial societies in Africa live with the reality of a plurality of legal

orders, owing to the interaction between western-type law and other
normative orders deriving from traditional or religious belief systems.
This is particularly evident in the area of family law, especially marriage,
divorce and succession, where there is a multiplicity of systems of law.
African women keenly experience the interaction of state, customary
and religious law, and due to gendered power relations, women are
often disadvantaged by that interplay. This has an impact on access to
Faculty of Law, University of Nairobi, Kenya.

International Journal of Law, Policy and the Family, Vol. 23, No. 2,
The Author [2009]. Published by Oxford University Press. All rights reserved. For Permissions,
please email: journals.permissions@oxfordjournals.org.
134 LAW, PLURALISM AND THE FAMILY IN KENYA
resources and, particularly, affects women in their negotiations with

men in the context of marital relationships. Although the existence of
multiple family law systems would appear to indicate the states desire
to cater to the needs of ethnic racial and religious diversity, in reality
this plurality is characterized by dichotomization, particularly of formal
law and custom. This approach is rooted in the essentialization of
custom, institutionalized by colonial legal policy in Africa, and
perpetuated in the post-colonial era. Custom is seen as static and rigid,
rather than dynamic and flexible.
Under the law/custom dichotomy, people are deemed to be governed
by one system of law to the exclusion of all others and to order their
family lives within the boundaries of that system. However, this
bifurcation runs counter to the reality on the ground, as peoples family
lives in Africa constantly traverse the boundaries of legal systems. The
inadequacies of the bifurcatory approach to family law are exemplified
in cohabitation relationships. Due to socio-economic changes, there
have been fundamental changes in family life, resulting in growing
informality in marital relationships and a rise in the number of
cohabitation relationships. Variously described as cohabitation, living
together, come we stay, trial marriage, these relationships traverse
and defy conventional categorizations of family law systems. Using
Kenya as a case study, this article examines the ways in which prevailing
legal policies and judicial attitudes, particularly the dichotomy set-up
between law and custom, have impacted on claims by women to property
and maintenance upon breakdown of the cohabitation relationship.
I argue that this approach stems from an erroneous conceptualization
of customary law manifested in a weak form of legal pluralism that does
not give effect to peoples experience of the intersection of legal orders.
The bifurcation has hindered the development of family law in a way
that reflects the reality of women living at the intersection of state law
and custom. In thinking about reform of family law in the African
context, there is need for an approach to legal pluralism that pays
attention to peoples perception of their normative context and how
such perception shapes their attitudes and actions. This would provide
a theoretical underpinning that would help in developing a legal
framework that is more in tune with peoples lived reality, particularly
that of women.
The next section of this article briefly discusses the concept of legal
pluralism in order to provide the theoretical framework for the
discussion. The article contrasts weak legal pluralism with strong legal
pluralism and argues for a strong form of legal pluralism that recognizes
the complexity of the interaction of formal law and custom. In the
following section, I discuss the African family in contemporary Kenya
in the context of socio-economic developments. This leads to a
discussion in the Family Law in Contemporary Kenya section on the
WINIFRED KAMAU 135
pluralistic nature of family law in Kenya. The Judicial Attitudes in

Family Law section discusses judicial attitudes on cohabitation where
the bifurcation between formal law and custom has been perpetuated.
In the concluding section, I offer some thoughts on possibilities for
moving beyond the quagmire of bifurcation.
LEGAL PLURALISM
The concept of legal pluralism has generally been used as a descriptive

theory to refer to situations in which two or more legal or normative
orders co-exist within the same social field. Legal pluralism is used in
contrast to the ideology of legal centralism in which all law is viewed as
emanating from the state and consisting of an exclusive, systematic
and unified hierarchical ordering of normative propositions (Griffiths,
1986). A distinction has, however, been made between two forms of
legal pluralism, namely strong and weak legal pluralism. Strong legal
pluralism refers to a situation in which not all law is state law nor
administered by a single set of state legal institutions, and in which law
is therefore neither systematic nor uniform (Griffiths, 1986: 5). It is
argued that apart from the state-operated legal system, there exist other
institutions of normative ordering such as home, neighbourhood,
workplace or business, through which people experience justice
(Galanter, 1981).
Conversely, weak legal pluralism is said to arise in situations where
parallel legal regimes co-exist but depend for their legitimacy on the
recognition or accommodation accorded to them by the dominant
state legal order. Weak legal pluralism starts from the standpoint that
state law or state-recognized law is the most important normative order,
and all other norm-creating and enforcing social fields, institutions
and mechanisms are either insignificant, subordinate or irrelevant
(Bentzon et al, 1998). Accordingly, the focus is on the norms applied
by the state court systems. For instance, the state legal system may
recognize the applicability of customary law or religious law in certain
limited spheres, such as marriage and property relations, often subject
to the requirement that such law must not be repugnant to morality or
justice.1 In weak legal pluralism, there is also an underlying assumption
that the spheres of customary law and state law are separate and operate
to the exclusion of the other.2 This gives rise to the erroneous
conceptualization of legal pluralism as a situation where two or more
parallel systems operate side by side without interaction. To counter
this, Moore uses the notion of the semi-autonomous social field to
describe and analyse multiple systems of normative ordering in society
and their complex and dynamic interaction. She asserts that while the
semi-autonomous social field is capable of generating rules, customs
and symbols internally, it is also vulnerable to rules, decisions and other

forces emanating from surrounding social forces (Moore, 1973).
Sousa Santos uses the concept of interlegality to describe not the
legal pluralism of traditional legal anthropology in which the different
legal orders are conceived as separate entities coexisting in the same
legal space, but rather the conception of different legal spaces
superimposed, interpenetrated and mixed in our minds as much as in
our actions, in crises as in the dull routine of eventless daily life
(Moore, 1973: 298). Nyamu challenges the dichotomy often set up
between formal state law and customary normative orders and argues
that both these systems operate on each other, and that each constitutes
and is itself constituted by the others. Formal law and custom intersect
in rather overt ways. The state is actively involved in shaping custom,
and the two ostensibly separate systems reinforce each other (Nyamu,
19981999: 26). These latter approaches are, in my view, more useful
for understanding the complex relationship between multiple legal
orders than the bifurcatory approach.
THE AFRICAN FAMIL Y IN CONTEMPORAR Y TIMES
In policy and research on the family, a dichotomy has been set up

between two idealized types of families, the traditional African family
and the modern westernized family, which are seen as binary opposites.
The main features of the traditional family are characterized by
extended kinship relations, the collective nature of family (ie, marriage
involving not only the two individuals but also a union between two
kinship groups), bridewealth payments, polygamy, a patriarchal
structure, strict gender division of labour and gender roles and the
subordination of women. Conversely, the modern westernized family is
characterized as nuclear, monogamous, with an emphasis on conjugal
relations, and relationships based on mutual love and respect and
equality of gender relations (see Goode, 1963; Harrell-Bond, 1976;
Prazak, 2006: 197).
However, social and economic transformations in African society
since the late 19th century have had a fundamental impact on the
family which cast doubt on this kind of dichotomization. With specific
reference to Kenya, the introduction of the capitalist mode of
production during colonial rule effected a change in the economic
base from pure subsistence farming or pastoralism to a cash-based
economy, which brought with it wage employment, cash crop farming,
urbanization, ruralurban migration and privatization of land tenure.
All these changes have affected family relations in terms of formation,
structure and function. In particular, the centrality of the kinship group
WINIFRED KAMAU 137
has been eroded, with greater emphasis being laid on individual

decision making (Mneney, 2000: 120; Rwezaura et al, 1995).
However, these changes have not been in a linear direction; thus,
although there has been some movement towards western marital
forms and relations, certain traditional elements have persisted. In
particular, the institution of bridewealth has been particularly resilient,
despite changes in its form.3 Further, although official polygamy seems
to be on the decline, it has been replaced by informal forms of polygamy,
variously described as outside wifeship, serial monogamy, deuxieme
bureaux, etc. There is also much more fluidity in marital arrangements,
with greater emphasis on procreation relationships rather than conjugal
ones, and an increase of cohabitation (come we stay). New kinds of
relationships, such as visiting husbands, have also emerged (Adepoju,
1977). Hence, the contemporary African family in Kenya, and elsewhere
in Africa, is neither purely traditional nor purely modern but has
elements of both, in unique configurations. This is contrary to
predictions of modernization theories of the 1960s, in which the African
family was seen as moving towards the western model, with an emphasis
on conjugality (Goode, 1963).
F A M I L Y L AW I N C O N T E M P O R A R Y K E N Y A
Family law in Kenya is characterized by plurality, with a diversity of

family and marriage law systems in co-existence. According to the
official legal system, there are four systems of family law in Kenya,
namely statutory,4 customary,5 Islamic6 and Hindu.7 These are seen as
discrete and closed systems, operating independently of each other,
with pre-determined norms or rules which supposedly govern behaviour.
It is assumed that parties will choose between one of the systems to
regulate their marital relations and that, conceptually, there can be a
clear divide between formal law and custom.8 Hence, Kenyans of
African descent, who form the vast majority of the population, are
deemed to be governed by either custom or state law. In cases of conflict
the court has to decide which one of the systems applies, and there
seems no contemplation that an individual may be affected by more
than one system. A classic example is the famous case of S.M. Otieno9
where both the court and the assisting counsel framed the issues in
terms of which system of law governed the deceased, customary law or
statute/common law. At no time did the court consider the possibility
of overlap or interaction of the two systems or of the deceased being
governed by both systems, despite evidence that the deceased by his
lifestyle straddled both the traditional and the modern. However, in
reality, these systems do not operate independently but interact in
various mutually constitutive ways. People constantly criss-cross the
boundaries and generally do not see their behaviour as conforming to

any one system of marriage.
The existence of multiple family systems would at first sight appear
to be recognition by the state of the ethnic, racial and religious diversity
of Kenyan peoples, and as arising from a genuine desire to cater to the
needs of that diversity. However, this legal pluralism in reality constitutes
legal centralism in disguise. In particular, the recognition of customary
law as a source of Kenyan law is hedged in with limitations. Although at
independence customary law was recognized as a source of law, the
English base of Kenyan law was retained, and customary law was to be
applied only upon the terms of state law. It was therefore subject to the
repugnancy clause10 whose retention to date subordinates customary
law to state law and reinforces the view that customary law is inferior to
received law. Further, the version of customary law recognized by the
court is based on static and rule-oriented concepts of custom, spelled
out in Restatements of customary law (Cotran, 1968), which are reinforced
and reproduced through the doctrine of precedent thereby acquiring
the status of quasi-codes. This is because customary law was assumed to
be timeless and static, and to consist of fixed rules that could be applied
by the native courts in disputes involving Africans. The result has been
ossification of judicial customary law in a manner that does not take
into account the dynamism of peoples practices.
In reality, custom is dynamic, and far from being a pre-determined
body of law which existed from a pre-colonial past, it is often the subject
of negotiation and its content is fluid and constantly shifting (Chanock,
1985; Stewart, 1998). Hence, customary law as enunciated by the courts
(judicial customary law) is qualitatively different from custom on the
ground (living customary law), which is dynamic and constantly
evolving (Roberts, 1984). The customary law of the state legal system
may therefore be said to be state-constructed custom, which applies
within the confines of a state-centric legal pluralism. Moreover, in
reality the so-called systems of law do not operate independently, but
intersect with each other in complex and dynamic, mutually constitutive
ways. Family and marital relations in Africa have taken forms that do
not conform to either the traditional or Western concepts of marriage,
as seen in the increasing informality of marriage and the non-compliance
with and crossing of boundaries of the ostensibly distinct categories.
For instance, most Africans who marry in church (under statute) at the
same time go through some customary rites, such as negotiations for
exchange of bridewealth. Further, African men marrying in church
may subsequently marry other women under custom (and vice versa),
nothwithstanding the penal sanctions of marriage legislation prohibiting
such unions, which are really a dead letter.
Parties tend to engage in long periods of cohabitation and procreation
before they have a church wedding, if ever, and bridewealth is normally
WINIFRED KAMAU 139
paid over a period. Marriage is therefore seen as a process rather than

a single event. Avoidance of law is evidenced in the phenomenon of
outside wifeship, where a married man will take up other women
whom he supports and with whom he has children, without going
through formal marriage, either customary or statutory. Further, there
is an increase in the number of people who are cohabiting, without
complying with either customary or statutory requirements.11 There is
also evidence of peoples manipulation of these boundaries in order to
avail themselves of certain benefits, such as the prevalent practice of
marriage by affidavit, whereby couples who are cohabiting informally
use the form of the affidavit, averring that they are married under
customary law in order to obtain the benefits of marriage.12 Thus, a
form of legality is used strategically, in order to by-pass the boundary
between official marriage and unofficial cohabitation, and thereby
to achieve a variety of desired goals. Kabeberi-Macharia and Nyamu
(1998) claim that a new form of marriage has thereby been created
which is neither customary nor legal, thereby demonstrating the
tenuousness and artificiality of distinctions set up between cohabitation
and customary marriage. There is also the practice of marriage by ID
where a woman in a cohabitation relationship changes her last name in
her national identity card to that of the partners as proof that she is
married to him. Again, the aim is to avail herself of the benefits of
marriage.13
Further, upon the breakdown of marital relations, couples married
under statute are more likely to go through customary divorce, rather
than divorce in the formal courts. Non-formal mechanisms of dispute
resolution, such as those involving family members, the clan, community
elders, local administration or church ministers are preferred, rather
than going to court, not only for couples married under custom but
even for those married under statute. This is further indication of the
interaction between formal and non-formal systems and the blurring of
the official/unofficial divide.
J U D I C I A L AT T I T U D E S I N F A M I L Y L AW
Despite ample evidence of the blurring of boundaries between law and

custom, the attitude of the Kenyan judiciary in claims over marital
property and maintenance has been characterized by two related
tendencies. The first is the emphasis on the centrality of marriage as
the basis for claims. The second is the dichotomization of formal law
and custom. State policies on the family are made on the assumption of
marriage as the basis of the family.14 Proof of marriage is a prerequisite
to establishing claims for property, custody or maintenance. There is
no statute in Kenya that provides for cohabitation unions, or
apportionment of property in the context of such unions. These

relationships do not fit into any of the four systems of marriage. The
only statute that enables Kenyan women, whether cohabiting or married
under statute, to claim property from a marital partner is the English
Married Womens Property Act, 1882, which provides that a married
woman is treated as a femme sole for purposes of determining questions
of property.15
Where a woman in a cohabitation relationship brings a claim under
this Act the court must first determine whether such cohabitation
constitutes a marriage before entertaining the claim. A woman seeking
a share of matrimonial property from her partner will therefore first
have to seek a declaration of marriage. In this regard, the Kenyan
judiciary has held that the English common law presumption of
marriage is applicable in Kenya.16 Where the court applies the
presumption, the relationship is treated for all intents and purposes as
a marriage, with all the attendant legal consequences. Whether or not
a relationship is defined as a marriage has implications on parties
access to resources, and the definition of a relationship is therefore
often a matter of contestation. In the Kenyan context, there is an
intricate connection between cohabitation, customary marriage and
presumption of marriage. Where a party who is in a cohabiting
relationship wishes the court to make a declaration of marriage, that
party will try to assert the existence of a customary marriage, while the
other party will deny it. For example, in cases where a woman wishes to
obtain certain benefits, such as maintenance for her children, she will
argue that the union was a customary marriage. On the other hand, the
man will deny the existence of a marriage, arguing that the woman was
merely a girlfriend, in order to avoid maintenance obligations.
The courts have tended to adhere to strict formulations of custom
(as set out in the Restatements)17 to determine the existence or validity
of a customary marriage prior to making a declaration of marriage in
respect of cohabiting couples. An early example is Case vs Ruguru,18
where the court held that there was no valid Kikuyu customary marriage,
despite payment of bridewealth, as the requisite ngurario ceremony
(involving slaughtering of a ram) was not performed. The court did
not consider the relative importance attached to that ceremony at the
time of the alleged marriage.19 In Josephine Wairimu vs J.K. Kibogy (1984),
the petitioner claimed she was married to the respondent under
customary law and that they had lived together as husband and wife
over a period of 12 years, during which six children were born to the
couple. The court found no evidence of a Kikuyu customary law
marriage since her father did not receive any dowry from the respondent.
The court ruled that the respondent had no duty to maintain the
petitioner and her six children. In Rosemary Mukiri vs Ephantus Mukiri
(1987), the couple had lived together for six months, but was thereafter
WINIFRED KAMAU 141
forced to live apart as they worked in separate stations. They, however,

visited each other frequently and had three children. The husband
then went for studies overseas and returned with a wife. The court
found that cohabitation for six months without payment of dowry did
not amount to marriage under Kikuyu customary law.20
The definition of a relationship may in some cases also involve
interested third parties. A common example is in matters of intestate
succession, usually upon the death of the male partner, where the
female partner asserts a claim to the deceaseds property on the basis
that she was his wife. Where the mans relatives do not support her
claim, they will argue that she was not married to the deceased, and
that they only knew her as a girlfriend, or not at all, thereby seeking to
exclude her from the division of the deceaseds property. In other cases,
there is disagreement between two or more women, each claiming to
be the deceaseds wife and wanting a share in the property.21
In recent times there have been an increasing number of cases in
which the courts have upheld the existence of a marriage notwithstanding
the absence of some requisite customary ceremony, usually relying on
evidence of the parties long cohabitation and repute. For instance in
Lucy Wambui Maina vs Dickson Muhia Mutty,22 the presumption of
marriage was held to arise where the parties had cohabited for a long
time and attempts had been made, albeit thwarted, to formalize the
relationship.23 However, there has been no consistency in such decisions
and, currently, there is no certainty which way the court will go in any
particular case. This puts women in a precarious situation where they
are subject to the vagaries of judicial discretion. The effect of the
judicial stance in cohabitation relationships is that women are
disadvantaged in their claims over resources such as spousal property
and maintenance. Women seem to be in a double bind. On the one
hand, there is an absence of formal law, in the form of legislation that
promotes womens property interests. The 1882 Married Womens
Property Act, besides being foreign and antiquated, is grossly inadequate
to meet the complexities of the current Kenya context. On the other
hand, any hopes for development of a customary law that better reflects
current practice are thwarted by the rigid approach of the courts. This
conundrum has resulted in stultification in the development of Kenyan
family law.
This bifurcatory approach results in exclusion or marginalization of
women (who are often the most affected) from rights existing under
either custom or statute, especially where the marital union is not
entered under statute and at the same time does not satisfy the stringent
requirements of a customary marriage, as specified in the Restatements.
As a result, many women cannot get maintenance for themselves or
their children.24 Similarly, many women are locked out of rights of
succession to their partners estate where they cannot prove to the
court that they were married to the deceased man. Further, the
dichotomous approach sets up tensions between reformers who adopt
the rights paradigm and valorize formal law and traditionalists who
reify custom. This has resulted in difficulties of effecting legislative
reform. Proposals for legal reforms for gender equity usually take a
bifurcated view of custom as oppressor and formal law as saviour.
Such proposals usually fail to take into account the cultural context and
therefore set themselves up for backlash from traditionalists, thereby
subverting reform efforts.25 Thus, the promotion of gender equity
through formal law is subverted or not effectively implemented, while
correspondingly, the development of a customary law that better reflects
current practice is thwarted by the rigid approach of the courts.
C O N C L U S I O N : B E Y O N D B I F U R C AT I O N
There have been no serious efforts by the judiciary to challenge colonial

notions of what constitutes custom and move beyond the bifurcatory
approach. In my view, this would require a reconceptualization of the
relationship between custom and formal law and a recognition of the
complex interaction between them. First, there is need to recognize
that meanings of marriage and family are historically grounded and
constituted. This calls for an approach that pays greater attention to
peoples perception of their normative context, and how such
perception shapes their attitudes and actions. This involves giving
taking into account the situation on the ground, particularly with
regard to cohabitation relationships, and may require empirical
investigation into the actual practices of people.26 This would bring
judicial interpretations of customary law more in line with lived reality,
especially in relation to womens lives.
Efforts at reform of formal law must take into consideration the
cultural context and should avoid approaches that result in polarization
between rights activists and traditionalists. There is need for consensus
building before attempting to change law. This involves recognition by
reformers of the value of customary norms in womens lives and the
realization that custom is a source of identity for most people and can
be a source of entitlement. Thus, the fluidity of marital relationships
can and does offer room for negotiation, particularly for women.
Nyamu advocates an approach which she calls critical pragmatism
that focuses on context and consequences, and enables women to
utilize and develop the opportunities presented by plural normative
orders while challenging oppressive ones (Nyamu, 2000).
In my view, judges can play a more creative and innovative role, even
in the absence of enabling legislation, by making decisions that pay
more attention to fair play and equity and less to rigid conceptions of
WINIFRED KAMAU 143
custom. Finally, there is need to recognize and strengthen community-

based dispute resolution structures, which are likely to be less focused
on the form of marriage and more willing to make decisions based on
fair play. This is especially important in the face of current limitations
in access to formal courts.
NOTES
1
See, for instance, section 3(2) of the Kenyan Judicature Act, No. 16 of 1967 (Cap. 8) which
stipulates that customary law in Kenya shall apply only in civil cases where it is not inconsistent
with written law or repugnant to justice and morality.
2
This was the position taken in the famous case of S.M. Otieno where the highest court in Kenya
held that questions of personal law for Africans are governed by customary law to the exclusion of
English common law Virginia Edith Wambui Otieno vs Joash Ochieng Ougo and Omolo Siranga (Civil
Appeal No. 31 of 1987) [1987] eKLR.
3
Bridewealth is now mostly paid in cash rather than livestock and other non-monetary items,
but the amount is usually computed with reference to the cost of livestock.
4
These are western-type marriages which involve church or civil ceremonies and are
monogamous. They are governed by various statutes namely the Marriage Act (Cap. 150), the
African Christian Marriage and Divorce Act (Cap. 151) and the Matrimonial Causes Act (Cap.
152).
5
These are potentially polygamous marriages governed by the customary laws of the various
African peoples and not governed by any statute. Payment of bridewealth is an integral part of
such marriages.
6
This system applies to people of the Muslim faith and is based on the teachings of the Koran.
Such marriages are potentially polygamous up to a maximum of four wives.
7
This system applies to people of the Hindu religion. Marriages are monogamous and rights
and obligations under such marriages are the same as those under statutory marriages.
8
Nyamu (19981999) notes that constitutional provisions buttress this bifurcation. Under
section 82(4)(b) of the Constitution personal law matters, including marriage, divorce,
succession.
9
Virginia Edith Wambui Otieno vs Joash Ochieng Ougo and Omolo Siranga (Civil Appeal No. 13 of
1987) [1987] eKLR.
10
Section 3(2) of the Judicature Act (Cap. 8).
11
The increase in cohabitation has been attributed to the high cost of weddings, which tend to
include the trappings of Western wedding ceremonies as well as the demands of custom, such as
bridewealth payments: see Kabeberi-Macharia and Nyamu (1998).
12
For example, to enable one partner to be covered under the others insurance policy or to be
included in the others passport to facilitate travel. See Kabeberi-Macharia and Nyamu (1998)
13
The term marriage by ID was used by my colleague Patricia Kameri-Mbote in a recent
conversation.
14
An emphasis on marriage has the effect of excluding women who are not married or who are
without men: Armstrong et al (1993) Uncovering reality: excavating womens rights in African
family law, International Journal of Law, Policy and the Family 7, 314 at 365. Similarly, census
reports and other demographic data are based on stereotypical definitions of family, which hide
the different permutations of familial and marital relations: A.F. Aryee, The African Family and
Changing Nuptiality Patterns in Adepoju (1977).
15
This 19th-century English legislation has been declared by Kenyan courts as a statute of
general application vide section 3(1) of the Judicature Act and therefore applicable to Kenya.
16
This is by virtue of section 3(1) of the Judicature Act, which allows for the application of the
common law of England, in so far, as it is relevant and applicable to the conditions of Kenya and
its inhabitants.
17
Cotran (1968).
18
[1970] EA 55.
19
However, in Peter Hinga vs Mary Wanjiku (High Court Civil Appeal 9/1977), the judge upheld
the existence of a marriage, despite the absence of ngurario, and stated that the man was relying
on a technical point in Kikuyu customary law so as to avoid his obligation to maintain his
children.
20
Another example is Josephine Kemunto vs Joseph Kiptoo (1986), where the court dismissed the
womans claim for maintenance on the ground that there was no evidence of marriage between
the parties. The parties had cohabited for a year and had a child, but the mother and child were
later driven away by the man.
21
See, for instance, Yawe vs Public Trustee (Civil Appeal No. 13 of 1976 (unreported)); Mary Njoki
vs John Kinyanjui Mutheru.
22
[2007] eKLR.
23
See also Christine Wambui Kamau vs Julius Kagori Maina [2006] eKLR where the presumption
of marriage was applied.
24
The Affiliation Act (Cap. 142), which had enabled women to claim maintenance for children
born out of wedlock, was repealed in 1968. Under the Childrens Act, 2001, the responsibility for
maintenance of children born out of wedlock is placed squarely on the mother, except where the
man has acknowledged paternity of the child.
25
This has happened during parliamentary debates on the Marriage Bill in 1969, 1979 and
1985, as well as debates leading up to repeal of the Affiliation Act in 1968, and more recently
during the enactment of the Sexual Offences Act, 2006.
26
This is the approach taken by the Women and Law in Southern Africa, a womens action
research group.
REFERENCES
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Bentzon, A. W., Hellum, A. and Stewart, J. (1998) Pursuing Grounded Theory in Law: South-North
Experiences in Developing Womens Law, Harare: Mond Books.
Chanock, M. (1985) Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia,
Cambridge: Cambridge University Press.
Cotran, E. (1968) Restatement of African Law, Vol. 1, Law of Marriage and Divorce and Vol. 2 Law of
Succession, London: Sweet & Maxwell.
Galanter, M. (1981) Justice in many rooms: courts, private ordering and indigenous law, Journal
of Legal Pluralism 19, 1.
Goode, W. J. (1963) World Revolutions and Family Patterns, New York: The Free Press.
Griffiths, J. (1986) What is legal pluralism?, Journal of Legal Pluralism, 1.
Harrell-Bond, B. (1976) Modern Marriage in Sierra Leone: A Study of the Professional Group, The
Hague: Mouton.
Kabeberi-Macharia, J. and Nyamu, C. I. (1998) Marriage by developing alternative laws on
cohabitation in Kenya in J. Eekelaar and T. Nhlapo (eds), The Changing Family: International
Perspectives on the Family and Family Law, Oxford: Hart Publishing.
Mneney, E. (2000) Maintenance law: the rights of women and children in K. Kibwana and L.
Mute (eds), Law and the Quest for Gender Equality in Kenya, Nairobi: Claripress, 120.
Moore, S. F. (1973) Law and social change: the semi-autonomous social field as an appropriate
subject of study, Law & Society Review 7, 719.
Nyamu, C. I. (19981999) Achieving gender equality in a plural legal context: custom and
womens access to and control of land in Kenya, Third Word Legal Studies 21, 26.[Gender
Equality]
Nyami, C.I. (2000) How should Human Rights and Development repond to Cultural Legitimization
of Gender Hierarchy in Developing Countries?, Harvard lnternational Law Journal, 41, 381.
Prazak, M. (2006) Kenyan families in Y. Oheneba-Sakyi and B. K. Takyi (eds), African Families at
the Turn of the 21st Century, Westport, Connecticut: Praeger, 197.
Roberts, S. (1984) Introduction: some notes on African Customary Law, Journal of African Law
28, 1.
Rwezaura et al. (1995) Parting the long grass: revealing and conceptualising the African family,
Journal of Legal Pluralism 35, 25.
Stewart, J. (1998) Why I cant teach customary law in J. Eekelaar and T. Nhlapo (eds), The Changing
Family: International Perspectives on the Family and Family Law, Oxford: Hart Publishing, 217.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO 484 OF 2014
BETWEEN
L.N.W .. PETITIONER
AND
THE HON. ATTORNEY GENERAL .... 1ST RESPONDENT
THE REGISTRAR OF BIRTHS AND DEATHS ... 2ND RESPONDENT
KENYA NATIONAL COMMISSION
ON HUMAN RIGHTS (KNCHR).......AMICUS CURIAE
THE LAW SOCIETY OF KENYA ... INTERESTED PARTY
JUDGMENT
Introduction
1. This petition concerns the rights of children born outside marriage. In
this case, the issue revolves around the registration of their births
and the circumstances under which the name of the biological father
should be inserted in the birth certificate of the child.
2. The petitioner, L.N.W, is a single mother of a child born outside

marriage. She states that she has filed the petition on her behalf, for
her child and other children born out of wedlock, and on behalf of
other affected persons of her class as single mothers.
1 Judgment: Petition No. 484 of 2014

3. She has lodged her claim against the Attorney General (AG), the
chief legal advisor and legal representative of the national
government in civil matters pursuant to Article 156 of the
Constitution. The 2nd respondent is the Registrar of Births and Deaths
(the Registrar), whose mandate is outlined under the Registration
of Births and Deaths Act, Chapter 149 of the laws of Kenya and
includes, as the name suggests, the registration of all births and
deaths in Kenya and the keeping of appropriate records in respect
thereof.
4. The Kenya National Commission on Human Rights (KNCHR) applied

and was joined to the proceedings as a friend of the Court, while the
Law Society of Kenya was permitted to participate in the proceedings
as an interested party.
The Petitioners Claim

5. The petitioner has a fairly straightforward claim. She challenges the
constitutionality of section 12 of the Registration of Births and Deaths
Act (hereafter the Act) which she alleges is unconstitutional and in
contravention of several provisions of the Constitution and various
international laws that form part of Kenyan laws by virtue of Article 2
(6) of the Constitution. Section 12 of the Act provides as follows:
No person shall be entered in the register as the
father of any child ex cept either at the joint
request of the father and m other or upon the
production to the registrar of such evidence as he
m ay require that the father and m other w ere

m arried according to law or, in accordance w ith
som e recognized custom . (Emphasis added)
6. She urges the Court to find that the above provision is

unconstitutional for, inter alia, being discriminatory against children
born outside marriage, allow her petition dated 2nd October, 2014,
and grant the following orders:
a) A declaration and an order that section 12 of the
R egistration of Births and Deaths Act, is
inconsistent w ith Articles 27, 53 (1) (a) and 53 (2)
of the Constitution and is therefore null and void.
b) An order that section 12 of the R egistration of

Births and Deaths Act be construed w ith the
necessary alterations, adaptations, qualifications
and exceptions necessary to bring it into
conform ity w ith Articles 27, 53 (1) (a) and 53 (2)
of the Constitution.
c) An order that all children born out of w edlock shall

have the right and or liberty to have nam es of their
fathers entered in the Births registers.
d) An order do issue com pelling the 1 st respondent to

com ply w ith order (c) above under Article 23 of
the Constitution.
e) Any other orders and or directions as to but not

lim ited to advertisem ent of this petition.
7. The petitioner has made her averments of fact in her affidavit sworn
in support of the petition on 2nd October 2014, and legal arguments
in submissions dated 2nd July, 2015. Her case was presented by her
Learned Counsel, Mr. John Chigiti.

8. According to Mr. Chigiti, the gist of the petition is that the provisions
of the Act are discriminatory in providing that the only time that the
name of the father of a child born outside marriage can be entered in
the register of births is upon the joint request of the father and
mother, or upon proof of marriage. The petitioners case is that this
provision is the beginning of the journey of inequality that a child
born out of wedlock has to travel.
9. The petitioner is the mother of a four year old child who was
conceived and born out of wedlock. The childs birth certificate does
not bear the name of the father. When the child was born, its father
indicated to her in clear terms that his name should not feature in the
childs birth certificate. She therefore complied with his request due
to the provisions of section 12 of the Act.
10. The petitioner now avers that her child lives in the dark, with an
incomplete name and/or identity, despite the fact that children are
entitled to a name and an identity which helps them to connect with
where they come from, who their family members are, and who their
relatives and extended family are. The childs family tree has a
loosely hanging dead branch as she does not know who her father is.
As a result, the petitioner is troubled at all times by the thought that
her daughter could one day fall in love with her sibling and get
married as a result of the fact that she does not know who her father
is.

11. The petitioner argues that a childs fathers name should appear in
the register of births and in the birth certificates in order to create an
avenue through which children born out of wedlock can enjoy their
rights. It is also her contention that during hospital visits, the childs
medical history cannot be fully known unless the identity of its father
is known.
12. The petitioner deposes that children born out of wedlock are
disadvantaged on many fronts in matters like health, marriage, and
inheritance amongst others as a result of the inability or the
restriction set out in the impugned section of the Act. Further, many
single mothers like her find themselves victims of indirect
discrimination on the basis of their status.
13. The petitioner has relied on the definition of the word name in
Blacks Law Dictionary and on Re Snook 2 Hilt [N.Y] 566 in
which it was noted that a m ans nam e is the m ark or indicium
by w hich he is designated from other m en . In her view, by dint
of section 11 of the Children Act, Articles 7 and 8 of the
Convention on the Rights of Children; and Article 2 of the
Universal Declaration on Human Rights, birth registration is an
important process in the life of every human being. She submits that
it is through registration that a child acquires identification and legal
recognition in the eyes of the law, and that registration is achieved
through the entry of the name of the person to be registered in the
register of births.

14. It is her submission further that registration creates the foundation
on which rights are reckoned with and/or enjoyed, protected,
promoted and/or fulfilled; that registration creates the content that
comprises the births register of all the people in any country; and
that registration helps everybody and the state to identify, distinguish
and protect the people born in a country. It is her contention that
while the process of registration of names of children born in
marriage is usually automatic and straight forward under the Act, the
same process does not apply to children born outside marriage.
15. According to the petitioner, registering the birth of a child is a duty

for parents in particular, to legally acknowledge that they have a
responsibility for their child. With registration, the parents become
the legal representatives of the child and are thereby clothed with
the duty to safeguard and promote their childs health and
development, and provide them with direction and guidance
throughout childhood. In her view, having a fathers name on a
childs birth certificate guarantees the child that he or she shall be
cared for by both parents, assures the child that it shall be officially
recognized by the government, creates a bridge to access and
enjoyment of a host of rights and privileges which cannot be enjoyed
by a child who does not know who the father is, and creates a
foundation for a nationality and citizenship for the child. It also forms
and underscores a legal basis for family ties and helps in the
distinction of one person from others.

16. It was the petitioners further submission that the fabric of ones
identity is woven by the surnames of individuals, more so the fathers
name. In her view it is by having a name, which is the source of
ones identity, that the history, lineage and origin of an individual is
given. It was further submitted on her behalf that in establishing the
extraction, lineage, ancestry or origin of a human being, we are
guided by the surnames of individuals as they show relations that
people have with one another. It was her submission therefore that a
child deserves to know as much as possible about both parents but
also to know the identity of his/her father in order to fully bask in the
comforts and benefits of lineage and pedigree, and to have a sense
of identity and personal history.
17. The petitioner contended that children born out of wedlock have
been denied the right to have their fathers name by dint of section
12 of the Act. They walk around with incomplete names as a result,
and some are forced to adopt their mothers surnames or have
XXXX marks on their registration documents. Her submission is
that this amounts to indirect discrimination which is a violation of
Article 27 (4) of the Constitution and is further against the best
interest of the child under Article 53 of the Constitution.
18. The petitioner further took the view that a child who is born out of
wedlock cannot enjoy the right to dignity without an identity and a
name; that such a child cannot escape the taunts and ridicule of
society due to the lack of a fathers name and the existence of
XXXX abbreviations as the alleged initials of the fathers name.
Additionally, in her view, such children may not have the avenue to
enjoy the right to citizenship as guaranteed under Article 14 (1) of
the Constitution. Accordingly, the benefits that one enjoys as a
citizen are unsure for children born out of wedlock, and statelessness
is never too far for such a child.
19. The petitioner asserts that most states have today addressed the
issue of discrimination against children, relying in support on the
decisions in Marckx vs Belgium, Application No. 6833/74,
Mazurek vs France, Application No. 34406/97, and Merger
and Cross vs France, Application No. 68864/01.
20. It is also the petitioners contention that a child born out of wedlock
who does not know the identity of the father is likely to miss out on
rights of inheritance and the right to property under Article 40 (1) of
the Constitution. She submitted that it is easier for children with their
fathers name on the birth certificates to enjoy the right to inherit
property from both parents as it is easier to prove parentage.
21. The petitioner also alleges violation of the right to information under
Article 35 (1) (b) of the Constitution with respect to children born out
of wedlock. This is because such children cannot easily know who
their father is if the impugned section remains as it. She maintained
that it is not just her child but also other children born out of wedlock
and their descendants who have the right to access such information
Furthermore, in her view, children deprived of their genetic identity

and their descendants are harmed physically and psychologically, and
such harm impacts upon and affects generations.
22. It is also the petitioners contention that the lack of medical

information about ones parents affects the childs right to the highest
attainable standard of health. Her submission was that a child who
does not know its father will obviously not know the fathers medical
history, and as a result, the childs right to health and life are
threatened. This is because, in her view, doctors cannot conclusively
ascertain the child/childrens future health conditions, including the
chances of suffering from terminal illnesses, high blood pressure,
diabetes or other chronic illnesses which could stem from the
parents medical condition if the child is unaware of the parents
identity. It was her submission therefore that section 12 of the Act
violates Article 43 of the Constitution.
23. The petitioner further submitted that children born out of wedlock
run a risk of getting married to their siblings as a result of denial of
the information about their fathers. Her view was that such children
are, as a result, more exposed to matrimonial offences such as
entering into prohibited marriage relationships, than other children.
There was thus a threat of violation of Articles 43 and 45 of the
Constitution with respect to them. Her submission was that
consanguineous relationship can increase the risk of serious genetic
diseases in resultant children born out of relationships between
children who do not know their fathers.

24. The petitioner relied on High Court Petition No. 193 of 2011-Zak
and Another vs The Attorney General and Another [2013]
eKLR for the proposition that the Children Act must be read as
imposing parental responsibility for children on both of their biological
parents, whether they were married to each other or not at the time
of the childs birth. She averred further that there is no justification in
the inequality imposed by the impugned section herein and that
limiting the rights of single mothers in the way the section intended is
outdated and excessive.
25. In response to the respondents contention that the rights of fathers

of children born outside marriage will be affected if the orders that
she was seeking with respect to section 12 of the Act were granted,
the petitioner argued that the respondents have not demonstrated
how the fathers of such children will suffer if the childrens birth
certificates carry their names. In her view, fathers in such
circumstances will not suffer any prejudice or hardship if such
children know their identity. She referred to the position in law in
Costa Rica with respect to fatherhood and responsibility to argue that
there are less restrictive means, such as those adopted in Costa Rica,
to safeguard the rights of children born out of wedlock and at the
same time give the fathers an opportunity to defend themselves and
enjoy the rules of natural justice and protection of the law.
26. While strongly urging the Court to find in her favour and grant the
orders sought so that the names of the fathers of children born
outside marriage could be inserted in their birth certificates, the
petitioner conceded that there may be instances in which this is not
desirable. She cited in particular cases of children born as a result of
sexual and gender based violence or crimes under the Sexual
Offences Act.
27. The petitioner proposes that whenever a child is born outside

wedlock, the acknowledgement of birth slip must capture the name
of the father if known, and the Registrar shall thereafter invite the
father to state whether or not that is his child, and if he is agreeable
to the name being entered on the Register. If the father of the child
is not agreeable, then the Registrar can call for a DNA test to
establish paternity. If the results are positive, the Registrar shall
enter the name of the father in the register. If the father is
dissatisfied with the decision, he shall have a right of appeal to the
High Court. Learned Counsel for the petitioner submitted that such a
process would protect both the father and the child, and will
additionally cater for the interests of fathers who may be suffering,
presumably due to exclusion from a childs life.
The Interested Partys Case

28. LSK filed submissions dated 27th May, 2015 in support of the
petitioners case. Its submissions were that the right to a name is a
fundamental right for everyone as it is the very essence of ones
identity. In its view, the entry of the names of the parents of a child
into the birth registry is what gives identity to a child. In Kenya,
which is a patriarchal society, a child derives his or her surname from
the names of his parents as entered in the register of births.

29. LSK takes the position that the wording of section 12 of the Act
denies a child born out of wedlock the automatic entitlement to the
name of his or her father. In its view, the section discriminates
against such children and it is therefore in violation of Article 27 of
the Constitution.
30. According to LSK, the fear of being named as the father of a child
one has not sired can be dealt with effectively without the
discriminatory tones in the section. However, in its view, the right of
every child to be cared for by both parents, to a name and
nationality, and to information, far outweighs such fear. LSK further
submitted that where a fathers name is forwarded for entry into the
register and there is doubt as to whether he is the biological father,
there ought to be a provision to enable him an opportunity to confirm
that he is indeed the father.
31. Its submission was that the process of DNA sampling may be used
to confirm the putative father, and the issue of costs can be
addressed when such circumstances arise. Where a mother of a child
born outside marriage alleges that a certain man is the father and he
denies paternity, if the DNA process proves that he is indeed the
father, he should be condemned to pay the costs of the DNA.
However, if the DNA turns out negative, the mother should pay the
cost of the test.
32. LSK further submitted that the practice of placing the XXXX marks
on the birth certificates of children born outside marriage should be

discouraged and done away altogether. In LSKs view, the placing of
such marks obliterates the genesis and background of a child and
gives incorrect information. According to the LSK, even children born
of technology assisted methods such as IVF have fathers. In its view,
a provision such as section 12 of the Act, which perpetrates the
possibility of obliterating a childs history and background
information, flies in the face of constitutional provisions on the right
to information and health.
33. Additionally, the section presupposes that each child will have both
his mother and father alive and available to make a joint application
for such childs birth certificate. According to the LSK, in the case
where the mother dies at child birth, such a child would not be able
to meet the criteria to have his fathers name on the birth certificate.
LSKs argument was that in such event, there is no possibility of a
joint application by his parents, and no evidence of any marriage.
Such a child would therefore stand disadvantaged as he/she is locked
out and discriminated against on the basis of the marital status of
his/her parents, which discrimination is compounded by the death of
the unwed mother.
34. LSK therefore concluded that the wording in the section must be
altered, amended and qualified so that it can be inclusive of all
children regardless of the marital status of their parents. In its view,
the section must be worded in such a way that it facilitates the

possibility of factual information being placed in every persons birth
certificate.
The Respondents Case

35. Both the respondents opposed the petition and filed an affidavit in
reply sworn on their behalf by Mr. Mutua George, the Senior
Registration Officer in the Civil Registration Services at the Ministry of
Interior and Coordination of National Government, on 3rd November,
2014. They also filed submissions dated 14th August, 2015 which
were highlighted by Learned State Counsel, Ms. Wawira.
36. Mr. Mutua deposes that the Director of Civil Registration is

empowered under section 7 of the Act to keep a register of births
with the prescribed particulars of every birth being notified for
registration. Sections 10 and 11 of the Act provide the modalities of
capturing the prescribed particulars of the childs birth, including
information regarding its parents. His deposition is that it is the duty
of the childs parents or occupier of the house in which a child is born
to give notice of the birth of the child.
37. The information required in the prescribed notice includes the

particulars of the child as well as those of its mother and father
where applicable. Under section 26 (2) and (3) of the Act, the
Principal Registrar furnishes a certified copy of the entry of the
register in his custody, while the birth certificate consists of the
details of one or both parents as declared at birth by the person
responsible.

38. According to the Registrar, where a mother does not declare the
particulars of the childs father at birth because they are not married
and she would like the fathers name to appear in the Register, the
Registrar invokes the provisions of section 12 where the alleged
father is required to give consent. Where the notification register is
surrendered to the Registrar without the fathers name, the Registrar
has no other way of ascertaining the authenticity of a declaration
being made thereafter except by the consent of the alleged father.
Mr. Mutua deposes at paragraph 12 of his affidavit that section 12 of
the Act is m eant to protect unscrupulous m others from
vindicating any m an of their choice for personal reasons.
The respondents take the position that the Act should be read as a
whole, and that section 12 should not be read on its own.
39. According to the respondents, if there are any constitutional

breaches, they have been occasioned by the petitioner for her failure
to include the fathers particulars in the birth notification as required
under the Act.
40. In their written submissions, the respondents contended that a

statute ought to be read as an integrated whole with no one
particular provision destroying the other but each sustaining the
other, as was held in Bernard Njoroge and Another vs
Independent Electoral and Boundaries Commission (IEBC)
and 2 Others [2013] eKLR and Edward Mwaniki Gaturu and
Another vs Hon. Attorney General and 3 Others [2013] eKLR.
They argued that sections 10 and 11 of the Act give an opportunity
to the mother or the person notifying a birth to enter the name of the
childs father in the register.
41. While conceding that indeed the entry of names of a childs parents
into the birth registry is what gives identity to a child and that Article
53 of the Constitution reiterates the need for a child to have a name
and identity, it was their submission that the state, in a bid to
discharge its constitutional mandate to observe, protect and fulfill the
rights under the said Article, enacted the impugned Act. The
respondents maintained that the Act has a laid down procedure that
regulates the registration of births, and it is the responsibility of the
mother or the person notifying a birth to ensure that the birth is
properly registered with the prescribed particulars.
42. According to the respondents, in a case where a person notifying the

birth in the first instance does not include the name of the childs
father, the Registrar has no other way of ascertaining the
authenticity of a declaration made afterwards except by seeking the
consent of the alleged father. In their views, allowing the names of
fathers to be inserted in the register at any point without verification
would open a platform of confusion as unscrupulous mothers would
have a leeway to vindicate any man of their choice at any time for
personal reasons.
43. It was submitted on behalf of the respondents that the responsibility

of the mother or the person notifying the birth is to ensure that the
child is properly registered, and to ensure that all the particulars,

including the name of the father, are entered in the Register. The
respondent reiterated that section 12 comes into play when the name
of the father is not provided at birth and it requires that if a fathers
name was not entered at birth, and a mother comes up many years
later and purports that any person is the father of the child and
wants it entered in the Register, the section requires that the
persons consent must be taken into consideration.
44. Ms. Wawira further submitted on behalf of the respondents that the
Registrar has no other way of ascertaining the authenticity of an
afterthought declaration except by seeking the consent of the father.
In her view, the section is important and is meant to keep the
registration system safe. In the respondents view, if names are
allowed to be inserted in the Register at any point, a platform of
confusion which will allow unscrupulous persons to enter any
persons name in the Register at any point in their lives for personal
reasons will have been opened. Further, in their view, such a
situation will also open a window for unending litigation, and it is not
in the best interests of the child that the name is entered in the
Register at any stage, is contested, and then is struck out.
45. The respondents argued further that the mere fact of having a
fathers name on a certificate does not guarantee that a child will
enjoy the rights alleged to be infringed by the petitioner. In any
event, according to the respondents, the section only comes into play
where an application to include the name of the father is made long
after the birth of the child. In their view, there was nothing that
prevents a mother from inserting the name of the father of a child,
whether or not they were married to each other, in the Register.
46. The respondents urged the Court to be guided by the decision in

Tinyefuza vs The Attorney General of Uganda, Constitutional
Appeal No. 1 of 1997 and adopt a holistic interpretation of the Act.
They further urged the Court to dismiss the petition with costs to
them as the impugned section is necessary to prevent the abuse of
the registration process under the Act.
Submissions by the Amicus Curiae
47. KNCHR filed submissions dated 17th September, 2015 which were
highlighted by its Learned Counsel, Mr. Wasia.
48. According to the Amicus, the differentiation between children born in

marriage and those born out of wedlock amounts to discrimination on
the ground of birth. It argued that there was no way that a child born
out of wedlock can know his/her health condition and background if
he/she does not know the parents medical background. Further, that
the discrimination against mothers on the ground of marital status is
founded upon the fact that a married mother shares parental
responsibilities and rights with the father of the child while an
unmarried mother has to bear the burden on her own.
49. KNCHR submitted that children born out of wedlock suffer ridicule
and stigmatization in school and in social platforms whenever the
questions of the name and identity of the father arises. In its view, to

deny such children the opportunity of ever knowing their father is
dehumanizing treatment and is undignified in that it terminates any
connection of the child to the father and is therefore in contravention
of Article 28 of the Constitution.
50. KNCHR went on to highlight the practice in other jurisdiction with

regard to parental care and responsibility. It relied on the decision in
Bhe and Others vs Khayelitisha Magistrate and Others (CCT
49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1)
BCLR 1 (CC) to submit that no distinction should be made between
marital and extra-marital children with regard to intestate succession.
Further, that in Peterson vs Maintenance Officer and Others
(6541/03) [2003] ZAWCHC 61; [2004] 1 All SA 117 (C) the
court overturned a common law rule that allowed paternal
grandparents to refuse to maintain children born out of wedlock, but
required maintenance of grandchildren born in wedlock.
51. The Amicus further observed that the United States Supreme Court
imposes two tests for determining whether laws that discriminate
against illegitimate children violate the Constitutions equal protection
clause of the 14th Amendment. The submission by the Amicus is that
the test set out is that laws that act as an impenetrable barrier to
children born out of wedlock to vindicate their rights violate equal
protection and are unconstitutional, and secondly, that under the
substantial relationship test, a statute discriminating on the basis of
illegitimacy may be upheld as constitutional when the statute is
substantially related to an important governmental objective. For the

foregoing propositions, KNCHR relied on Gomez vs Perez, 409 U.S
535, 538 (1973); Handley, By and Through Herron vs
Schweiker, 697 F.2d 999, 1002 (11th Cir. 1983); Mills vs
Habluetzel, 456 U.S 91, at 97 (1982); Clark vs Jeter, 486 U.S.
486, 461 (1988); Trimble vs Gordon, 430 U.S. 762, 768-772
(1977) and Lalli vs Lalli, 439 U.S 524 (1978).
52. The Amicus asked the Court, in making a determination in the

present case, to take into account the practical effects of the
discrimination against children born out of wedlock in the Act and not
simply legal and formulistic outcomes. In its view, if the
discrimination inherent in the Act practically results in denial of
constitutional or common law rights to children born out of wedlock
and not within marriage, the Act would very likely be found to violate
equal protection of the law. Further, that if sufficient evidence is
presented in this petition to prove that the impugned section
establishes an insurmountable barrier for children born out of
wedlock to enjoy rights granted to children generally, the Courts
inquiry would end there and a violation of equal protection would be
found. However, should the Court not find an insurmountable barrier,
it would next apply the substantial relationship test.
53. Under the latter test, according to the Amicus, the Court would first
ascertain whether the government interest in the impugned section
in treating children born out of wedlock differently than other
children is important. If the purported government interest is
ensuring accurate birth records or protecting against false paternity
and inheritance claims, the objective may be deemed important by
the Court. It was its submission that the language of the section does
protect against record falsification by mothers as they cannot
unilaterally register a fathers name on the birth certificate. If the
mothers were empowered to register such names without consent,
accuracy of birth certificates could be threatened in at least two
ways: a mother could knowingly commit fraud by registering the
name of a man whom she knew could not be the father; and
secondly, a mother could mistakenly register the name of a man
whom she, in good faith, believed to be the father, but who was not.
In its view, the Act protects against these possibilities.
54. Mr. Wasia further contended that on an analysis of Article 24 of the

Constitution, the Court should ask itself whether giving fathers of
children born out of wedlock the leeway to veto the inclusion of their
names in the register/certificate of births will guarantee accurate
records, and if there would be any other way of meeting the objects
of the Act without subjecting the child to the trauma that the
petitioner spoke of.
55. According to Mr. Wasia, were the South African courts seized of the
matter and it applied the test in the two cases, it would have reached
the conclusion that section 12 violates the Constitution and other
provisions of international law.
56. The Amicus further took the view that the section empowering men
to unilaterally exclude their name from the birth record does not

protect against all inaccuracies because men who believe they have
fathered a child born out of wedlock may deny the registration of
their name, and a man who may not believe he has fathered a child
out of wedlock, who, in fact, has done so, may prevent his name
from being included in the birth certificate. Further, that the Act does
not allow for the fathers name to be added later, even after the legal
establishment of the paternity by Kenyan Courts or proof of paternity
through DNA testing. Further, even though section 28 of the Act does
allow for the Principal Registrar to correct errors and omissions,
he/she must do so subject to the rules of the Act. As a result,
additions and corrections with regard to the fathers name would still
require the fathers consent.
57. The conclusion by the Amicus was that if the important governmental
objective for treating children born out of wedlock differently in the
Act is the accurate record of births, it is likely that the Court would
not find a substantial relationship between that objective and the
policy adopted by the Act because of the various ways fathers can
unilaterally create inaccuracies and the inability for birth certificates
to be altered after a court judgment establishing paternity.
Determination
58. I have read the pleadings and submissions of the parties, and I
observe that there are no factual disputes to contend with. In
addition, I believe that the question of law before the Court is fairly
straightforward: is section 12 of the Births and Deaths

Registration Act unconstitutional and in violation of, amongst other
provisions of the Constitution, Articles 27, 53 (1) (a) and (2)?
59. In determining this question, I note and bear in mind that the
Registration of Births and Deaths Act was enacted in 1928. It has a
commencement date of 9th June, 1928. The last amendment to the
Act was in 1990. The Act therefore predates the 2010 Constitution
by eight decades. Indeed, it also predates the Universal Declaration
of Human Rights, the Convention on the Rights of the Child, as well
as the Children Act. It must therefore be looked at against the
backdrop of several decades of development in the human rights
field, which have seen attitudes towards women and children born
outside marriage change considerably, as well as substantial changes
in equality and non-discrimination jurisprudence.
60. With respect to the current constitutional dispensation, the Act must
be considered in accordance with the provisions of section 7(1) of the
Sixth Schedule to the Constitution, which requires that legislation
enacted prior to the promulgation of the Constitution be read with
the adaptations and exceptions necessary to bring it into conformity
with the Constitution. Section 7(1) provides as follows:
(1) All law in force im m ediately before the effective
date continues in force and shall be construed
w ith the alterations, adaptations, qualifications
and ex ceptions necessary to bring it into
conform ity w ith this Constitution.

61. I am also cognizant of several principles that should guide the Court
when it considers a matter in which the constitutionality of legislation
is impugned. One such principle requires that the Court takes into
consideration both the purpose and effect of the legislation. In the
Canadian Supreme Court decision in R vs Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, this principle was enunciated in the following
terms:
Both purpose and effect are relevant in
determ ining constitutionality; either an
unconstitutional purpose or an unconstitutional
effect can invalidate legislation. All legislation is
anim ated by an object the legislature intends to
achieve. This object is realized through im pact
produced by the operation and application of the
legislation. P urpose and effect respectively, in the
sense of the legislations object and its ultim ate
im pact, are clearly linked, if not
indivisible. I ntended and achieved effects have
been looked to for guidance in assessing the
legislations object and thus the validity. (Emphasis
added)
62. The respondents have referred the Court to the case of Bernard
Njoroge & Another vs the Independent Electoral &
Boundaries Commission & 2 Others (supra) for the principle
that legislation must be read as an integrated whole. The
respondents have argued that in that case, the Court emphasized the
principle in Tinyefuza vs Attorney General of Uganda,
Constitutional Petition No. 1 of 1997 (1997 UGCC 3) where
the Court held that the provisions of the Constitution must be read
as an integrated whole, without any one particular provision

destroying the other but each sustaining the other. I fully agree with
this submission.
63. I am also mindful of the words of the Court in the case of Ndyanabo
vs Attorney General of Tanzania [2001] EA 495 in which the
Court observed that there is a general presumption that every Act of
Parliament is constitutional, and the burden of proving the contrary
rests upon any person who alleges otherwise.
64. However, one must bear in mind that with respect to provisions of
legislation that limit or are intended to limit fundamental rights and
freedoms, the Constitution itself qualifies the presumption. As the
five-judge bench of the High Court observed in the case of Coalition
for Reforms & Democracy & Others vs Republic of Kenya &
10 Others, Petition No 628 of 2014:
[96.] How ever, w e bear in m ind that the
Constitution itself qualifies this presum ption w ith
respect to statutes w hich lim it or are intended to
lim it fundam ental rights and freedom s. Under the
provisions of Article 24 . there can be no
presum ption of constitutionality w ith respect to
legislation that lim its fundam ental rights: it m ust
m eet the criteria set in the said Article.
65. Finally, I bear in mind the words of the Court in U.S vs Butler, 297
U.S. 1 (1936) which is to the effect that:
W hen an Act of Congress is appropriately

challenged in the courts as not conform ing to the
constitutional m andate, the judicial branch of the
governm ent has only one duty; to lay the article of
the Constitution w hich is invoked beside the
statute w hich is challenged and to decide w hether
the latter squares w ith the form er. All the court
does, or can do, is to announce its considered
judgm ent upon the question. The only pow er it
has, if such it m ay be called, is the pow er of
judgm ent. This court neither approves nor
condem ns any legislative policy. I ts delicate and
difficult office is to ascertain and declare w hether
the legislation is in accordance w ith, or in
contravention of, the provisions of the
Constitution; and, having done that, its duty ends.
(Emphasis added)
66. Article 24 of the Constitution sets the test to be applied in

considering the constitutionality of legislation alleged to be in breach
of, or to threaten, fundamental rights. It states as follows:
24.(1) A right or fundam ental freedom in the Bill of

R ights shall not be lim ited ex cept by law , and
then only to the ex tent that the lim itation is
reasonable and justifiable in an open and
dem ocratic society based on hum an dignity,
equality and freedom , taking into account all
relevant factors, including
(a) the nature of the right or fundam ental
freedom ;
(b) the im portance of the purpose of the
lim itation;
(c) the nature and ex tent of the lim itation;
(d) the need to ensure that the enjoym ent of
rights and fundam ental freedom s by any
individual does not prejudice the rights
and fundam ental freedom s of others; and

(e) the relation betw een the lim itation and its
purpose and w hether there are less
restrictive m eans to achieve the purpose.
(2) Despite clause (1), a provision in legislation
lim iting a right or fundam ental freedom
(a) in the case of a provision enacted or
am ended on or after the effective date,
is not valid unless the legislation
specifically expresses the intention to
lim it that right or fundam ental freedom ,
and the nature and extent of the
lim itation;
(b) shall not be construed as lim iting the
right or fundam ental freedom unless the
provision is clear and specific about the
right or freedom to be lim ited and the
nature and extent of the lim itation; and
(c) shall not lim it the right or fundam ental
freedom so far as to derogate from its
core or essential content.
(3) The State or a person seeking to justify a
particular lim itation shall dem onstrate to
the court, tribunal or other authority that
the requirem ents of this Article have been
satisfied.
.
67. Section 12 of the Births and Deaths Registration Act, which I have set
out fully elsewhere in this judgment, states that no person shall be
entered in the register of births as the father of a child ex cept
either at the joint request of the father and m other or upon
proof to the Registrar that the father and mother of the child w ere
m arried to each other in accordance with the law or some

recognized custom. This provision, according to the petitioner, is
discriminatory against children born outside marriage.
68. Prima facie, and it is evident, from their submissions, that the
respondents tacitly concede this, the provisions of section 12 accords
different treatment with respect to registration of birth and the entry
of the particulars of the father to children born outside marriage as
against those born within marriage. While it does not say so
expressly, the effect of section 12 is that if a father of a child born
outside marriage is not willing to have his name entered in the
register as the biological father, then his name will never be entered
in the register. This is because, since the mother and father are not
married to each other, there will never be any proof of marriage
between them as would satisfy the Registrar.
69. The petitioner has asserted that the section violates Articles 27, 53
(1) (a) and (1) (2). Article 27 of the Constitution provides that:
(1) Every person is equal before the law and has the
right to equal protection and equal benefit of the
law .
(2) Equality includes the full and equal enjoym ent of
all rights and fundam ental freedom s.
(3) W om en and m en have the right to equal
treatm ent, including the right to equal
opportunities in political, econom ic, cultural and
social spheres.
(4) The State shall not discrim inate directly or
indirectly against any person on any ground,
including race, sex , pregnancy, m arital status,

health status, ethnic or social origin, colour, age,
disability, religion, conscience, belief, culture,
dress, language or birth.
(5) A person shall not discrim inate directly or

indirectly against another person on any of the
grounds specified or contem plated in clause (4).
(6)
70. Article 53 of the Constitution contains specific guarantees with

respect to children. It provides that:
(1) Every child has the right-
(a) To a nam e and nationality from birth;
(b)
(2) A childs best interests are of param ount

im portance in every m atter concerning the child .
71. The equality provisions in Article 27 require that there should be no

legislation that affords different treatment to children on account of
their birth. Thus, the rights guaranteed to children under Article 53,
as well as all the other rights contained in the Constitution, must be
accorded to all children, whether born within or outside marriage.
Every child, therefore, is entitled to a name and a nationality. In a
patriarchal society such as Kenya, that implies the fathers name. Yet,
under the provisions of section 12, unless the father consents, a child
born outside marriage will never have, let alone know, its father or
his name. As the petitioner and LSK submit, where the fathers name
should be is a row of XXXs, yet no child is born without a father.

72. The rights guaranteed to children under Article 53 are reflective of
the rights guaranteed to children under various international
instruments to which Kenya is a party. The 1989 Convention on the
Rights of the Child recognizes the right of a child to a name. Article 7
thereof provides that:
(1) The child shall be registered im m ediately after
birth and shall have the right from birth to a
nam e, the right to acquire a nationality and. as
far as possible, the right to know and be cared
for by his or her parents.
(2) States P arties shall ensure the im plem entation
of these rights in accordance w ith their national
law and their obligations under the relevant
international instrum ents in this field, in
particular w here the child w ould otherw ise be
stateless.
73. Article 8 further states that:

(1) States P arties undertake to respect the right of
the child to preserve his or her identity,
including nationality, nam e and fam ily relations
as recognized by law w ithout unlaw ful
interference.
(2) W here a child is illegally deprived of som e or all

of the elem ents of his or her identity, States
P arties shall provide appropriate assistance and
protection, w ith a view to re-establishing
speedily his or her identity .

74. Article 25(2) of the Universal Declaration of Human Rights also
contains clear provisions intended to protect children born outside
marriage from discrimination. It provides as follows:
(1) .
(2) M otherhood and childhood are entitled to
special care and assistance. All children,
w hether born in or out of w edlock, shall
enjoy the sam e social protection.
75. At Article 24, the International Covenant on Civil and Political

Rights states that:
1. Every child shall have, w ithout any discrim ination

as to race, colour, sex, language, religion,
national or social origin, property or birth, the
right to such m easures of protection as are
required by his status as a m inor, on the part of
his fam ily, society and the State.
2. Every child shall be registered im m ediately after
birth and shall have a nam e.
3. Every child has the right to acquire a nationality .
76. One may ask: what is the importance of a name to a child? And what
is the mischief to be prevented by treating children, regardless of
their status at birth, equally? The petitioner attempted to draw a
word picture of the treatment that children born outside marriage,
who do not know their fathers identity or bear their names, are
subjected to. She talked about the taunts they receive in school; the
questions about their fathers in the classrooms; the indignity they
experience as a result of the xxxs in their birth certificates.

77. The South African case of Bhe and Others vs Khayelitsha
Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005
(1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004),
which the Amicus Curiae referred the Court to, captures well the
plight of such children:
[57] Historically in South Africa, children w hose

parents w ere not m arried at the tim e they w ere
conceived or born w ere discrim inated against in a
range of w ays. This w as particularly true of
children w hose fam ily lives w ere governed by
com m on law . M uch of the stigm a that attached to
ex tra-m arital children w as social and religious in
origin, rather than legal, but that stigm a w as
deeply harm ful. The legal consequences of ex tra-
m arital birth at com m on law flow ed from the
Dutch principle that een w ijf m aakt geen
bastaard, the im plications of w hich w ere that the
ex tra-m arital child w as not recognised as having
any legal relationship w ith his or her father, but
only w ith his or her m other. The child therefore
took the m others nam e, inherited only from his or
her m other, and the father of the child had no
parental obligations or rights vis--vis the
child. The law and social practice concerning
ex tra-m arital children w ithout doubt conferred a
stigm a upon them w hich w as harm ful and
degrading.
78. The situation in Kenya does not differ significantly from what is
described in the South African case above. The petitioner has alluded
to the stigma and discrimination that children born outside marriage
are subjected to. They have no relationship with their, often
unknown, fathers, and cannot expect parental care from them. She

notes the ridicule and stigma that such children suffer when the
question of their fathers names or identity comes up. This is what
our Article 27 and 28, on non-discrimination and right to dignity, seek
to avoid in according children born outside marriage the same right
to equality and dignity as children born within marriage. In the Bhe
case cited above, the Court went on to observe as follows with
respect to these two constitutional guarantees:
[59] The prohibition of unfair discrim ination on the

ground of birth in section 9(3) of our Constitution
should be interpreted to include a prohibition of
differentiating betw een children on the basis of
w hether a childs biological parents w ere m arried
either at the tim e the child w as conceived or w hen
the child w as born. As I have outlined, ex tra-
m arital children did, and still do, suffer from social
stigm a and im pairm ent of dignity. The prohibition
of unfair discrim ination in our Constitution is
aim ed at rem oving such patterns of stigm a from
our society. Thus, w hen section 9(3) prohibits
unfair discrim ination on the ground of birth, it
should be interpreted to include a prohibition of
differentiation betw een children on the grounds of
w hether the childrens parents w ere m arried at the
tim e of conception or birth. W here differentiation
is m ade on such grounds, it w ill be assum ed to be
unfair unless it is established that it is not .
79. It should be observed that section 9(3) of the South Africa

Constitution is mirrored in our Article 27.
80. In addition to being a limitation on the right to non-discrimination

and dignity, the provisions of section 12 have a deleterious effect on

other rights of the child as well. Article 53(1)(e) provides that a child
is entitled to parental care and protection, w hich includes
equal responsibility of the m other and father to provide for
the child, w hether they are m arried to each other or not. In
order to access this right, a child must know, and have in its
documentation, the name and identity of its father. This, however, is
unlikely to happen if the inclusion of the name of a person as the
father of a child is dependent on the willingness of that person to be
included in the birth register.
81. Finally, I need not belabour the arguments made by the petitioner
with respect to the importance of the identity of a father for
enjoyment of other rights such as the right to health and the right to
inherit. With respect to the right to health, ones genetic make-up
can only be established if there is information with respect to both
parents, which will not happen if the identity of the father is missing
from a childs birth records. I have not heard the respondents dispute
these contentions by the petitioner and interested party.
82. The petitioner has also raised questions related to the childs right to
inheritance and to property under Article 40. I note that under Article
53(1)(e) of the Constitution, a child is entitled to parental care and
protection from both parents, whether they were married to each
other or not. It seems to me that question of inheritance do turn on
identity and recognition of children by both their mothers and
fathers. Consequently, a provision in legislation that denies a child

such recognition must derogate from the entitlement of the child to
inherit.
83. What I understand the respondents case to be is that the provisions

of section 12 of the Act are intended, first, to protect the accuracy of
the records kept by the Registrar of Births and Deaths. Secondly,
they contend that the section is necessary to protect men from
unscrupulous women who may vindicate any man falsely as the
father of their children. I believe the word intended was implicate,
and the intention behind the Act therefore, in the respondents view,
is to protect men from being implicated by unscrupulous women as
the fathers of their children.
84. Article 24 of the Constitution and various judicial precedents,

including the decision in R vs Big M Drug Mart Ltd (supra) and in
the Coalition for Reform and Democracy (supra) emphasise the
importance of considering the object, purpose and effect of
legislation. Article 24 further requires that the importance of the
purpose of the limitation be considered, as well as the relationship
between the limitation and its purpose, and whether there are less
restrictive means of achieving the purpose.
85. Admittedly, it is important to keep proper birth records. It is also

important to prevent unscrupulous women from claiming that a man
is the father of their child(ren). However, are these purposes
achieved by giving the father of a child born outside marriage the
veto power, so to speak, on whether or not the birth records indicate

that he is indeed the father of the child in question? Do these
purposes justify the limitation of the rights of children born outside
marriage to non-discrimination, dignity, the right to parental care,
amongst others?
86. I consider these questions from a purposive interpretation of the

Constitution which, as Article 259 enjoins, is to be interpreted in a
manner that:
(a) prom otes its purposes, values and principles;
(b) advances the rule of law , and the hum an rights
and fundam ental freedom s in the Bill of R ights;
87. Article 10 provides the national values and principles as including

hum an dignity, equity, social justice, inclusiveness,
equality, hum an rights, non-discrim ination and protection of
the m arginalized. I have already set out elsewhere in this
judgment the provisions of Article 27 of the Constitution which
guarantee the right to non-discrimination and equality of all persons
before the law. At Article 28, the Constitution guarantees to all
inherent dignity and the right to have that dignity
respected and protected . Section 53(2) contains a further core
principle of our Constitution: A childs best interests are of
param ount im portance in every m atter concerning the child .
88. What I read from these provisions is a desire to transform society, to

recognize the inherent dignity and worth of all persons; to protect
those who have hitherto been marginalized and to ensure that they
enjoy the human rights guaranteed to all on the same basis as
others. Further, that the best interests of the child, whatever its
status of birth, must be the primary consideration in every matter
concerning the child.
89. In my view, these constitutional aspirations, in so far as they apply to

children born outside marriage, far outstrip in importance the need to
keep official records, or the desire to protect men from
unscrupulous women, assuming that one accepts that this was the
purposes that section 12 was intended to serve. This is more so
given the fact that there are less restrictive means of achieving these
purposes.
90. Thus, in my view, in so far as the section requires that the name of
the father of a child born outside marriage shall be entered in the
register of births only with the consent of the father, that provision is
unconstitutional and in violation of Articles 27, 28 and 53 of the
Constitution.
91. In addition, I take the view that it has the effect of imposing an
unfair burden on women, the mothers of children born outside
marriage, and is to that extent discriminatory on the basis of sex.
The Constitution and the Children Act have set out various rights of
children, and the obligations of parents to ensure that children have
access to these rights.
92. Where the father of a child born outside marriage refuses to

contribute to the upbringing of his child, the mother is compelled to

seek the Courts assistance in the form of a maintenance order,
which often requires establishing paternity through a DNA test. As
this Court underscored in the case of Zak and Another vs The
Attorney General and Another (supra), parental responsibility
for children, whether born within or outside marriage, is the
responsibility of both the father and the mother. Where the identity
of the father is not known, or his particulars are not included in the
birth register or the childs birth certificate, then a single mother has
the burden of pursuing the father for support, and having first to
establish the question of his paternity.
93. However, with legislation that provides for inclusion of the particulars
of fathers in the birth certificates of all children, whether born within
or outside marriage, the burden imposed on women is lessened, and
it is possible for men to take up their responsibilities with respect to
children sired outside marriage.
94. I also take the view that section 12 of the Act affords different
treatment to women who are not married compared to those who are
not. Women who get children outside marriage have the burden of
obtaining the consent of the father of their children in order for their
names to be entered in the register of birth. In this regard, I note the
words of the Court in the case of Matadeen and Another vs
Pointu and Others [1998] 3 WLR 18 where Lord Hoffman in
addressing differential treatment of persons stated that:

of course, persons should be uniform ly treated
unless there is som e valid reason to treat them
differently. The reasons for not treating people
uniform ly often involve questions of policy.
95. I have not been able, in this case, to see any valid question of law or
policy for treating children born outside marriage, or the mothers of
such children, differently.
96. The respondents argue that section 12 should not be read in

isolation, but must be read together with section 10 and 11 of the
Act. Their submission was that if the mother of a child born outside
marriage does not supply the information with respect to the father
in the notification of birth, then she has no-one to blame but herself,
and she should not be allowed later to ask for that information to be
included in the birth certificate of the child.
97. Section 10 of the Registration of Births and Deaths Act provides that:
Every person notifying the birth of a child shall, to

the best of his know ledge and ability, give the
prescribed particulars, w hich shall be entered
forthw ith by the registrar in the register, and the
person notifying the birth shall certify to the
correctness of the entry by signing or, if he is
illiterate, by fix ing his m ark to the register .
98. At section 11, the Act states that:
Upon the birth of any child the registration of

w hose birth is com pulsory, it shall be the duty of
the father and m other of the child, and, in default
of the father and m other, of the occupier of the
house in w hich to his know ledge the child is born,
and of every person present at the birth, and of
the person having charge of the child, to give
notice of the birth, w ithin such tim e as m ay be
from tim e to tim e prescribed, to the registrar of
the registration area in w hich the birth occurs:
P rovided that, in the case of births in prisons,
hospitals, orphanages, barracks or quarantine
stations, the duty to give such notice shall lie on
the officer in charge of the establishm ent in w hich
the birth took place. (Emphasis added)
99. The position today, I believe, is that all births must be registered.
Under the provisions of the Act, it is correct that there is a duty on
the mother or father of a child, or, failing them, the occupier of a
house in which a child is born, and every person present at the birth
and any such persons having such knowledge of the childs birth, to
give notice of the birth to the relevant Registrar of Births. The notice
is required to be given in a prescribed form provided under the Act.
In the prescribed form for the birth certificate is an entry requirement
for the name of the father to be inserted. Where the mother and
father of the child are married to each other, there is no problem: the
names of the parents will be entered as a matter of course.
100. We do not, however, live in an ideal world, and there will be those
cases where children will be conceived and born outside marriage. In
such cases, under section 12, the name of the father cannot be
entered in the Register without his consent.
101. One may blame women, as the respondents do, for not giving the
names of the fathers of their children at the notification stage. I

observe, however, that the legislation in question has been in force
for 80 years, and the practice appears to have developed, and been
accepted, that where a father of a child born outside marriage does
not wish to have his name entered in the register, that is what
happens. His position, after all, is supported by section 12 of the Act.
As the petitioner deposes at paragraph 4 and 5 of her affidavit in
support of the petition:
4. W hen the child w as born, the father indicated to

m e in clear term s that his nam e should not
feature in the childs birth certificate.
5. I had to com ply w ith his request and w ith the
dictates of section 12 of the Registration of births
and deaths Act w hich stipulates that, no person
shall be entered in the register as the father of
any child ex cept either at the joint request of the
father and m other or upon the production to the
registrar of such evidence as he m ay require that
the father and m other w ere m arried according to
law or, in accordance w ith som e recognized
custom
102. In my view, the petitioners contention that the provision of the

section is unconstitutional for violating various rights of children born
outside marriage is well founded. Further, its provisions cannot be
justified on the basis of the purposes that, according to the
respondents, it is intended to achieve.
103. To begin with, the contention that it is to keep records correct and
accurate is not sufficient to justify the denial to a child of its name
and the identity of its father and, therefore, its own identity. Indeed,
the correctness of information submitted to the Registrar can be
protected by making use of other provisions or methods for
establishing the correctness of the data, which I shall come to
shortly.
104. The second alleged purpose, protecting the putative father from the
alleged machinations of unscrupulous women is, in my view, based
on an unapologetic but unacceptable patriarchal mindset that wishes
to protect men from taking responsibility for their actions, to the
detriment of their children. In my view, balancing the two interests,
that of the men and the rights of children, I see no contest. I need
not add that such a stated purpose, the alleged protection of men
from unscrupulous women, is premised on a negative, discriminatory
stereotyping of women as dishonest people who will latch onto a
man for child support with no basis.
105. In any event, there are clear safeguards in the Act to prevent the
entry of false information in the Register. Section 22 of the Act
provides that:
Any person w ho fails to give notice of a birth or

death the registration of w hich is com pulsory, or
w ho refuses to furnish any of the prescribed
particulars, or w ho contravenes section 21 of this
Act, and any person w ho w illfully gives any false
inform ation or particulars for the purpose of
registration, shall be guilty of an offence and be
liable to a fine not exceeding five hundred shillings
or to im prisonm ent for a term not ex ceeding six
m onths, or to both such fine and such
im prisonm ent .
106. It appears to me that should the mother of a child born outside
marriage name a person as the father of her child falsely, there is a
remedy under section 22 of the Act.
107. Further, with the possibility of DNA testing, such false claims are
likely to be limited, assuming they occur at all. What needs to be put
in place are clear rules for applying for the name of the putative
father to be inserted in the birth register and certificate, for notice to
be given to the person concerned so that he can agree or object, and
in the event of an objection, for DNA testing to be done.
108. The respondents did argue that allowing a woman to insert the
name of the father of her child at any time will lead to litigation. This
may well be the case. However, I take judicial notice of the fact that
even as matters stand today, there is quite a lot of litigation by
children seeking to establish their identity and the identity of their
fathers. It is, in my view, in the best interests of the children that
such matters are sorted out early on in their lives when the parental
support that they are entitled to can be obtained, and when the
stigma and discrimination that they suffer from a lack of identity can
be prevented from blighting their lives unnecessarily. We have made
promises of equality and non-discrimination to our children in the
Constitution. It is not too much to demand that we begin to effect
these promises with respect to children born outside marriage.

109. I appreciate that, as the respondents submit, the entry of the name
of the father of a child born outside marriage will not necessarily
mean that the child will get the care and attention that it ought to
get from its father. However, at the very least, it will give the child an
identity, the knowledge that though its father does not support or
care for it, it does have a father, and not a series of xxxxs in its birth
certificate. In any event, once the identity of a childs father is
established and documented, then it is possible to compel such
reluctant fathers to support their children through appropriate court
orders.
110. The law must demand that fathers of children born outside marriage
step up to the plate and take parental responsibility for their children.
This must begin with the provisions in respect of registration of the
birth of such children. A situation in which such children and their
mothers are discriminated against on the basis of the law cannot be
allowed to continue under our transformative constitution.
111. It must be obvious by now that in my view, this petition is merited,

and a challenge to section 12 of the Registration of Births and Deaths
Act is long overdue. My finding, and I so hold, is that section 12 of
the Registration of Births and Deaths Act, which contains the
requirement of the consent of a father of a child born out of wedlock
to have his name entered in the births register and the childs birth
certificate, is unconstitutional and in violation of Articles 27, 28 and
53 of the Constitution. Given the submissions of the respondent with

respect to what it is intended to achieve, my finding is that the
section cannot be justified under Article 24 of the Constitution.
Disposition
112. In concluding on this matter, I must observe that the Office of the
Attorney General has a duty to bring appropriate amendments to the
Registration of Births and Deaths Act, Cap 149 of the Laws of Kenya,
to bring it into conformity with the Constitution. As it currently
stands with respect to children born outside marriage, it is
indefensible.
113. In addition, appropriate changes must be made to the rules and

forms regarding notification of births, to allow for the entry of the
names of fathers of children born outside marriage to be entered in
the births register and the childrens birth certificates. Needless to
say, there needs to be provision for the time within which such
applications are to be made, and for notice to the alleged fathers, as
well as provision for DNA testing to be undertaken to establish
paternity where it is denied.
114. I need also not add that such rules must provide for entry of the
names of fathers and DNA testing in respect of minors, children as
defined by law, not in respect of persons who have reached the age
of majority.

115. In this regard, the petitioner referred to the legislation in Costa Rica
known as The Law of Responsible Fatherhood. She submitted
that the said legislation gives the mothers of children born outside
marriage, upon the birth of the child, the option of having a search
conducted for the father of her child, and for the child to be
registered and to bear his name.
116. In light of our very clear constitutional provisions of equality, non-

discrimination and the rights of children to parental support from
both parents, among other rights, such legislation is long overdue.
117. At any rate, I am satisfied that the orders sought by the petitioner
are merited, and I grant the following orders and declarations:
a) I declare that section 12 of the R egistration of
Births and Deaths Act is inconsistent w ith Articles
27, 53 (1) (a) and (e) and 53 (2) of the
Constitution and is therefore null and void.
b) I direct that section 12 of the R egistration of
Births and Deaths Act be construed w ith the
necessary alterations, adaptations, qualifications
and ex ceptions necessary to bring it into
conform ity w ith Articles 27, 53 (1) (a) and (e)
and 53 (2) of the Constitution.
c) I declare that all children born out of w edlock
shall have the right and or liberty to have the
nam es of their fathers entered in the births
registers.
d) I direct the R egistrar of Births And Deaths to,
w ithin 45 days hereof, put in place m echanism s
to facilitate the entry into the birth register of the

nam es of the fathers of children born outside
w edlock in com pliance w ith order (c) above.
118. With respect to costs, given the public interest nature of this matter,
I direct that each party bears its own costs of the petition.
Dated, Delivered and Signed at Nairobi this 26th day of May 2016
MUMBI NGUGI
JUDGE
Mr. Chigiti instructed by the firm of Chigiti & Co. Advocates for the
petitioner.
Ms. Wawira instructed by the State Law Office for the respondent.
Mr. Wasia instructed by the Kenya National Commission on
Human Rights for the Amicus Curiae.

Judge's Verdict On Birth Records May Lead to More
Abortion Cases
Prof. Okoth Okombo

Saturday Nation, 4 June 2016, 13
Many voiceless mothers are likely to gnash their teeth over the celebrated Justice
Mumbi Ngugi "landmark judgment" (Daily Nation, May 28), in which "all birth
records will have a mandatory inclusion of the father's name, even if the children
are born out of wedlock".
According to the Daily Nation article, the celebration of this judgment is based on
the assumption that "irresponsible fathers" are the ones who will feel the pinch
of the new law. I feel the legislation may cause a lot of pain to women, who might
not even have the courage to complain about it. It is a judgment about which one
may correctly say the devil is in the detail.
The relevant detail here has to do with the Kenyan traditional conceptualisations
of fatherhood versus the purely biological conceptualisation assumed in Justice
Ngugi's judgment. The biological conceptualisation of fatherhood does not
consider the cultural norms regulating who may possibly be regarded as a given
child's father.
Biologically, fatherhood is only related to sex and conception. As everyone in our

rural villages knows, fatherhood by sex is the most trivial conceptualisation of
the father-child relationship. Among the Luo of Nyanza, for example, fatherhood
is more seriously defined within a relationship of marriage, which must involve
people of different clans.
Technically, it is said that in such communities, marriage must be exogamous

(involving people of different clans). It would be unimaginable that someone of
my clan, the Kaswanga of Rusinga Island, would have a father from the same clan
as the mother. Thus, if my mother is a daughter of the Kaswanga people, it is
inconceivable that my publicly recognised father could also be a Kaswanga man.
In such a culture, sexual relationships involving members of the same clan are in
principle incestuous. Unfortunately, most of the teenage pregnancies occurring
in rural villages involve such incestuous relationships. It has not been easy in
recent times to prevent young girls and boys from engaging in sex with members
of their clans.
Although they are generally stopped from getting married, no one has the
supervisory capacity to prevent them from engaging in sex. The situation is made
more complex by the fact that some of the traditional clans have become
extremely big. Take, for example, a place such as Karachuonyo in Homa Bay
County. Although Karachuonyo has become so big that it has within it
administrative sub-categories that include locations, divisions, districts and
political constituencies, genealogically, the people of this region are treated as
members of one clan and, therefore, do not marry fellow Karachuonyo people.
One finds many incestuous sexual relationships in such a large clan, though no
marriages are allowed to take place, except if one member of the relationship
comes from an immigrant family known to belong to another clan outside
Karachuonyo. Thus, among the descendants of Rachuonyo, one may cross district
and constituency boundaries before they find someone they are allowed to
marry. Who would blame their teenagers for engaging in culturally incestuous
sexual activities?
The fact is that such sexual activities among teenagers are known to take place,
even in places such as Rusinga Island, where clans are much smaller. When
young girls get children from such extramarital relationships, they never declare
the biological fathers of their children. Generally, they wait until they find a man
from outside their clan to marry them, and become the recognised father of the
child they got from their extramarital relationship. As the Swahili saying goes,
Aliye na mama ndiye baba (The one who has my mother is my father). This
cultural arrangement, odd as it might sound to those who are not used to it, gives
such children someone they can publicly declare as their father without
experiencing any cultural stigma.
It is the opportunity to have this cultural laundering of one's parental

background that Justice Ngugi's law will deny the mothers a cultural opportunity
to straighten an awkward consequence of their teenage sexual adventures. It is
reasonable to expect the mothers in such situations to look for ways of saving
themselves and their children from the embarrassment of living with such a
stigma, not to mention the politics emanating from the attitude of the women's
husbands, if they ultimately get them, towards children whose birth certificates
show names of other men as fathers.
Will the men, if they are willing to accept such children as their own, be required
to apply for adoption through a legal process? It is unlikely that many young
women in such situations will wait to deal with all the attendant cultural and
legal encumbrances.
One obvious solution for such young women will be to seek an abortion once
they realise they have a pregnancy arising from such an incestuous relationship.
Given the material circumstances of such women in rural villages, the abortions
are likely to be carried out in unhealthy life-threatening situations.
Another category of women who may adopt the same solution but in less life-
threatening circumstances will be the whole range of particularly middle and
upper class women who have children with the kind of men popularly known as
"sperm donors" in Nairobi.
These are not the kind of men the cited Daily Nation article refers to as
"irresponsible fathers". They are not liars or hit-and-run personalities. The
women who have children with them choose them for that particular purpose
and have no intention of marrying them.
The author teaches at the University of Nairobi.

SPECIAL ISSUE
Kenya Gazette Supplement No. 62 (Acts No. 4)
REPUBLIC OF KENYA
KENYA GAZETTE SUPPLEMENT
ACTS, 2014
NAIROBI, 6th May, 2014
CONTENT
Act
PAGE
The Marriage Act, 2014 31
NATIONAL COUNCIL FOR LAW REPORTING

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31
2014 Marriage No. 4
THE MARRIAGE ACT, 2014
No. 4 of 2014
Date of Assent: 29th April, 2014
Date of Commencement: 20th May, 2014
ARRANGEMENTS OF SECTIONS
Section
PART I PRELIMINARY
1Short title.
2Interpretation.
PART II GENERAL PROVISIONS

3Meaning of marriage.
4Minimum age.
5Witnesses to a marriage.
6Kinds of marriages.
7Declaration of marriage registration areas.
8Conversion of marriages.
9Subsisting marriages.
10Prohibited marriage relationship.
11Void marriages.
12Voidable marriages.
13 Spouses and the law of tort.
14Arrangement to live apart.
15Rights of widow and widowers.
16Duration of marriage.
PART III CHRISTIAN MARRIAGES

17Christian marriages.
18Interpretation of Part.
19 Objection to give a notice of intention to marry.
20Obligations of the church minister in relation.to objection.
21Signing of the marriage certificate.
32

No. 4 Marriage 2014
22 Recognition of foreign marriages as Christian marriages in Kenya.

23 Christian marriages at the embassy, high commission or consulate.
PART IVCIVIL MARRIAGE
24Celebration of civil marriages.
25-1 Notice of intention to marry.
26Publication of notice of intention to marry.
27Objection to a notice of intention to marry.
28Obligation of the person in charge of a place where a marriage is to
be celebrated in 'relation to objectiOns.
29Determination of objection
30Effect of an appeal to an objection.

31Appeal proceedings.
32Certificate of no impediment.
33Powei of Registrar to dispense with notice.
34Effect of appeal on the findings of an objection.
35Contraction of civil marriage.
36Certificate of no impediment.
37Civil marriages at the Kenyan embassy, high commission or
consulate for non- Kenyan citizens.
38Civil marriages in foreign countries.
39Civil marriages at the Kenyan embassy, high commission or
Consulate for Kenyan citizens.
40Recognition of foreign marriages as civil marriages in Kenya.
41Appointment of diplomatic staff as celebrants of marriage.
42Duty to register marriages.
PART VMARRIAGE UNDER CUSTOMARY MARRIAGES
43Governing law for Customary marriage.
44Notification of Customary marriage.
45Contents of notification of Customary marriage.
33
2014 Marriage No. 4
PART VIHINDU MARRIAGES
46Application of this Part.
47Persons authorized by Registrar to solemnize Hindu marriages.
PART VII MARRIAGE UNDER ISLAMIC LAW
48Application of Islamic law.
49Officiation of Islamic marriages.
PART VIIIAPPOINTMENTS OF REGISTRAR OF MARRIAGES
AND MARRIAGE OFFICERS
50Appointment of Registrar and marriage officers.
51Appointment of marriage officers in foreign countries.
52Licensing ministers of faith.
PART IX REGISTRATION OF MARRIAGES

53Registration of Christian marriages.

54Registration of civil marriages.
55Registration of customary marriage.
56Registration of Hindu marriages.
57Registration of Islamic marriages.
58Registration of marriages contracted abroad.
59Evidence of marriage
60Copies of decrees of annulment and divorce to be sent to Registrar.
6IRegistration of foreign annulments and divorces.
62Endorsement of marriage registers.
63Correction of errors.
PART XMATRIMONIAL DISPUTES AND. MATRIMONIAL
PROCEEDINGS
Dissolution of a Christian marriage
64Mediation of disputes in Christian marriages.
65Grounds for dissolution of a Christian marriage.
Dissolution of a civil marriage
66Right to petition for separation or divorce.
67Dismissal of petition for deception or non-disclosure.
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No. 4 Ma rr ia,ce 2014
Dissolution of a customary marriage

68Mediation of disputes in customary marriages.
69Grounds for divorce of customary marriages.
Dissolution of a Hindu Marriage

70--Grounds for divorce of Hindu marriages
Dissolution of an Islamic marriage
7IGoverning law for Islamic divorce matters.
72Registration of divorce under Islamic law.
Annulment 0.iMarriage
73Grounds for annulment of marriage.
74Party to petition for annulment of marriage.
75-- Effect of a decree of annulment.

PART XI OTHER RIGHTS OF ACTION
76Effect of a promise to marry.
PART XII MAINTENANCE OF SPOUSE AND OTHER RELIEFS

77 Grounds for order of maintenance.
78Lapsing of maintenance.
79Termination of an order of maintenance.
80Revocation and variation of an order for maintenance.
81 Assessment of maintenance.
82-- Recovery of maintenance arrears.
83-- Compounding of maintenance.
84Other relief.
85Order concerning children.
PART XIII OFFENCES AND PENALTIES
86False statement in the notice of intention to marry or notice of
objection.
87Marriage to a person under minimum age.
88Marriage of persons within prohibited marriage relationship.
89Coercion, fraud, etc.
90Ceremony performed by unauthorized person.

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2014 Marriage No. 4

91Absence of witnesses.
92Offence relating to the celebration or witnessing of a union.
PART XIV MISCELLANEOUS PROVISIONS

93Celebration other marriages.

94Provisions on delegated powers.
95Rules.
96Transitional Provisions.
97Repeals.
98Savings.
SCHEDULE REPEALED ACTS
36

No. 4 Marriage 2014
THE MARRIAGE ACT, 2014

AN ACT of Parliament to amend and consolidate the
various laws relating to marriage and divorce and for
connected purposes
ENACTED by the Parliament of Kenya as follows
PARTIPRELIMNARY
Short title.
1. This Act may be cited as the Marriage Act, 2014.
Interpretation.
2. In this Act, unless the context otherwise
requires
"child" means an individual who has not attained the

age of eighteen years;
"cohabit" means to live in an arrangement in which an
unmarried couple lives together in a long-term relationship
that resembles a marriage;
"conciliatory body" means
(a) a body established under this Act for the purpose
of reconciling parties to a marriage;
(b) a mechanism of conciliation recognised under
customary or Islamic law;
(c) any other body designated as such by the
Cabinet Secretary by notice in the Gazette; or
(d) (d) any other body established by any written
law;
Cap. 10 "court" means a resident magistrate's court
established under section 3 of the Magistrates' Courts Act;
"dowry" means any token of stock, goods, moneys or

other property given or promised in consideration of an
intended marriage;
"faith" means an association of a religious nature and,
in the case of any system of religious, beliefs which is
divided into denominations, sects or schools, any such
denomination, sect or school;
`Hindu' means a person who is-
37
2014 Marriage No. 4
(a) a Hindu by religion in any form (including a

Virashaiva, a Lingayat and a follower of the
Brahmo, Prarthana or Arya Samaj);
(b) a Buddhist of Indian origin; or
(c) a Jain or a Sikh by religion;
"matrimonial proceedings" means proceedings

instituted under Part IX and include proceedings for the
payment of maintenance or for custody of children
instituted independently of a petition for a declaratory
decree or for annulment, separation or divorce;
"monogamous marriage" means a marriage whose

character has been converted to a monogamous marriage
by a declaration made under section 8, including an
originally polygamous or potentially polygamous marriage;
"party", in relation to a marriage, an intended

marriage or a purported marriage, means a spouse in a
marriage, or the intended spouse to a marriage or purported
spouse in a marriage;
"polygamy" means the state or practice of a man
having more than one wife simultaneously;
"prohibited marriage relationship" has the meaning
assigned to it in section 10;
"Registrar" means a person appointed under section
50 of this Act;
"spouse" means a husband a or wife; and
"witness" means to be present at, to observe, and to
attest to the celebration of a marriage by signing ones name
to or putting ones mark on a marriage certificate.
PART II GENERAL PROVISIONS

3. (1) Marriage is the voluntary union of a man and a Meaning of marriage.
woman whether in a monogamous or polygamous union

and registered in accordance with this Act.
(2) Parties to a marriage have equal rights and
obligations at the time of the marriage, during the marriage
and at the dissolution of the marriage.
38

No. 4 Marriage 2014
(3) All marriages registered under this Act have the

same legal status.
(4) Subject to sub-section (2), the parties to an Islamic

marriage shall only have the rights granted under Islamic
law.
Minimum age.
4. A person shall not marry unless that person has
attained the age of eighteen years.
Witnesses to a marriage.
5. (1) A marriage conducted under this Act shall be
witnessed by, two competent witnesses.
(2) A person is not competent to act as a witness if

that 'person is
(a) below the age of eighteen years;

(b) otherwise not competent to enter into a contract
because of-
(i) mental disability rendering that person
incapable of understanding what the
parties are doing; or
(ii) intoxication;
(c) unable to understand, whether through an

interpreter or otherwise, the language in which
the ceremony is held.
(3) The person who celebrates a marriage shall not be

a witness to the marriage for the purposes of this section.
Kinds of marriages.
6. (1) A marriage may be registered under this Act if it
is celebrated
(a) in accordance with the rites of a Christian

denomination;
(b) as a civil marriage;

(c) in accordance with the customary rites relating to
any of the communities in Kenya;
(d) in accordance with the Hindu rites and

ceremonies; and
39
2014 Marriage No, .4

(e) in accordance with Islamic law.
(2) A Christian, Hindu or civil marriage is

monogamous.
(3) A marriage celebrated under customary law or

Islamic law is presumed to be polygamous or potentially
polygamous.
7. The Cabinet Secretary may, by notice in the Declaration of marriage

registration areas.
Gazette, declare any area of Kenya to be a registration area
for the purposes of this Act.
8. (1) A marriage may be converted from being a Conversion of marriages.
potentially polygamous marriage to a monogamous
marriage if each spouse voluntarily declares the intent to
make such a conversion.
(2) A polygamous marriage may not be converted to a

monogamous marriage unless at the time of the conversion
the husband has only one wife.
(3) A declaration under subsection (1) shall be made
in the presence of a marriage officer and shall be recorded
in writjng and signed by each spouse.
. (4) A marriage officer before whom a declaration is

made under subsection (3) shall forthwith transmit a copy
thereof to the Registrar.
(5) Where a declaration is made under subsection (1),

the Registrar shall take possession of the certificate
registering the marriage as potentially polygamous and
shall issue a certificate registering the marriage as
monogamous.
(6) The Registrar shall enter the details of converted

marriages in the prescribed manner into a register
maintained fo,r that purpose.
9. Subject to section 8, a married person shall not, Subsisting marriages.
while
(a) in a monogamous marriage, contract another

marriage; or
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No. 4 Marriage 2014
(b) in a polygamous or potentially polygamous

marriage, contract another marriage in any
monogamous form.
Prohibited marriage
relationship.
10. (1) A person shall not marry
(a) that person's grandparent, parent, child,
grandchild, sister, brother, cousin, great aunt,
great uncle, aunt, uncle, niece, nephew, great
niece or great nephew;
(b) the grandparent, parent, child or grandchild of

that person's spouse or former spouse;
(c) the grandparent, parent, child or grandchild of

that person's former spouse;
(d) a person whom that person has adopted or by

whom that person has been adopted; or
(e) any other person where such marriages is

prohibited under customary law.
(2) For the purposes of this section, a relationship of

the half-blood is a bar to marriage.
(3) A person who, by this section, is forbidden to

marry shall be said to be within a prohibited marriage
relationship.
(4) The marriage of a person with that person's cousin

does not apply to persons who profess the Islamic faith.
Void marriages.
11. (1) A union is not a marriage if at the time of the
making of the union
(a) either party is L etlow the minimum age for

marriage;
(b) the parties are within the prohibited marriage

relationship;
(c) either party is incompetent to marry by reason of

a subsisting marriage;
41
2014 Marriage No. 4
(d) by order made under section 25, the court has

directed that the intended marriage is not to be
contracted;
(e) the consent of either party has not been freely

given;
(f) either party is absent from the ceremony;
(g) both parties knowingly and willfully permit a

person who is not authorised to do so to celebrate
the union;
(h) either party is mistaken about the identity of the

other party; or
(I) either party knowingly or willfully enters into the

marriage for fraudulent purposes.
(2) Consent is not freely given where the party who

purports to give it-
(i) is influenced by coercion of fraud;

(b) is mistaken as to the nature or purport of the,
ceremony; or
(c) is suffering from any mental condition whether
permanent or temporary, or is intoxicated, or is
under the influence of drugs, so as -not to
appreciate the nature or purport of the ceremony.
12. Subject to section 50, a marriage is voidable if Voidable marriages.
(a) at the date of the marriage-
(i) either party was and has ever since remained
incapable of consummating it;
(ii) either party was and has ever since remained
subject to recurrent attacks of insanity;
(b) there was a failure to give notice of intention to

marry under section 25;
(c) notice -of objection to the intended marriage
having been given was not withdrawn or
dismissed;
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No. 4 Marriage 2014
(d) the fact that a person officiating the marriage was
not lawfully entitled to officiate;
(e) failure to register the marriage.
Spouses and the law of
tort.
13. Despite the provisions of any other written law
(a) a spouse shall not be liable for the torts of the
other spouse by reason of being a spouse;
(b) spouses have the same liability in tort towards

each other as if they were not married; and
(c) a spouse shall be entitled to claim, in any action

resulting from a negligent act, omission or breach
of duty, which causes loss of the companionship
of the other, or damages in respect of that loss.
Arrangement to live
apart.
14. (1) The parties to a civil marriage may agree to
live apart for one year and any such agreement shall be
valid and enforceable, and shall be filed with the court.
(2) Despite subsection (1), the court may vary or set

aside the agreement or any of its provisions if the court is
satisfied that since the agreement was made there has been
a material change of circumstances.
(3) A party to a civil marriage may apply to the court

to determine their status after the expiry of the one year
period from the date of agreement.
Rights of widow and
widowers.
15. (1) A widow or widower may re-marry.
(2) A widow or a widower may elect not to re-marry.

Duration of marriage.
16. A marriage registered under this Act subsists until
it is determined by
(a) the death of a spouse;
(b) a decree declaring the presumption of the death of
a spouse;
(c) a decree of annulment;
(d) a decree of divorce; or
(e) a decree of divorce or annulment obtained in a
foreign country and recognized in Kenya under
this Act.
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2014 Marriage No. 4

PART IIICHRISTIAN MARRIAGES
17. This Part applies to a marriage where a party to the Christian marriages.
marriage professes the Christian religion.
18. In this Part "marriage officer" means a licensed Interpretation of Part
church minister appointed by the registrar under section 50.
19. (1) A person who knows of an impediment to an Objection to give a

notice of intention to
intended marriage may give a written notice of objection to marry.
the person in charge of a public place of worship where
notice of intended marriage has been posted in accordance
with section 26.
(2) A notice of objection shall include the name of the

person giving the notice of objection and the person's
relationship with either of the intended parties and shall
state the reason for the objection to the intended marriage.
(3) A person who has given notice of objection may,

at any time, withdraw the objection in writing.
20. (1) Upon receiving a notice of objection, the Obligations of the

church minister in
person in charge of a public place of worship shall hear the relation to objection.
objection forthwith and if the person in charge of a public
place of worship considers that the objection requires a
further hearing, he or she shall postpone the marriage
ceremony until such time as the objectionsr will be
determined in accordance with the church regulations.
(2) The person in charge of a public place of worship

shall determine an objection within a reasonable period
,which shall not be more than seven days after hearing the
objection.
(3) Upon determination of an objection, the person in

charge of public place of worship shall prepare and submit
a report of the process of determination of the objection in
the prescribed form to the parties and the Registrar within
seven days of determination.
(4) Any party who is dissatisfied with the decision of

the person in charge of a public place of worship may
appeal tp the court within fourteen days of the decision.
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No. 4 Marriage 2014
Signing of the marriage
certificate.
21. (1) When a marriage has been celebrated in
accordance with the provisions of this Part, the person
officiating at the marriage ceremony shall
(a) complete and sign a marriage certificate in the
prescribed form; and
(b) cause it to be signed by the parties and by the
witnesses to the marriage.
(2) The person officiating at the marriage ceremony
shall issue
(a) one copy of the marriage certificate to the parties;
(b) retain one copy of the marriage certificate; and
(c) deliver one copy of the marriage certificate to the
Registrar.
Recognition of foreign
marriages as Christian
22.A marriage celebrated outside Kenya otherwise
marriages in Kenya. than in accordance with this Part, shall be recognized as a
marriage under this Part if
(a) it is contracted in accordance with the law of the
country where it is celebrated and is consistent
with the requirements of this Part;
(b) at the time of the celebration of the marriage, the
parties to the marriage had the capacity to marry
under the law of the country where the marriage is
celebrated; or
(c) at the time of the marriage any party to the
marriage is domiciled in Kenya, both parties had
the capacity to marry under this Act.
Christian marriages at
the embassy, high
23. A marriage celebrated in the embassy, high
commission or commission or consulate of a foreign country in Kenya is a
consulate.
Christian marriage under this Part if
(a) it is contracted in accordance with the law
relating to Christian marriages of that foreign
country;
(b) at the time of the marriage, the parties had
capacity to marry under the law of that foreign
country and under this Act; or
(c) either of the parties is at the time of the marriage
domiciled in Kenya both parties had capacity to
marry under this Act.
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2014 Marriage No. 4
PART IVCIVIL MARRIAGE
24. A marriage under this Part shall be celebrated by Celebration of civil

marriages.
the Registrar in the place determined by the Registrar.
25. (1) Where a man and a woman intend to marry Notice of intention to
many.
under this Part, they shall give to the Registrar and the
person in charge of the place where they intend to celebrate
the marriage a written notice of not less than twenty-one
days and not more than three months of their intention to
marry.
(2) A notice given under this section shall include
(a) the names and ages of the parties to the intended

marriage and the places where they ordinarily
reside;
(b) the names of the parents of the parties, if known
and alive, and the places where they ordinarily
reside;
(c) a declaration that the parties are not within a
prohibited relationship;
(d) the marital status of, each party and, where a party
is-
(i)i divorced, a copy of the relevant decree; or
(ii) widowed widow or a widower, a copy of the
death certificate; and
(e) the date and venue of the marriage ceremony.
(3) The notice under subsection (1) shall be signed by

both parties.
26. After receiving a notice under section 25, the Publication of notice of
intention to marry.
Registrar shall publish such notice in the prescribed
manner in the place where the marriage is to be celebrated.
27. (1) A person who knows of an impediment to an Objection to a notice of

intention to marry.
intended marriage may give a written notice of objection to
the 'Registrar or the person in charge of the place where a
notice of intended marriage has been posted in accordance
with section 26.
46

2014
No. 4 Marriage
(2) A notice of objection shall include the name of the

person giving the notice of objection and the person's
relationship with either of the intended parties to the
marriage and shall state the reasons for the objection to the
intended marriage.
(3) A person who_has given a notice of objection may

at any time withdraw the objection in writing.
Obligation of the person
in charge of a place
28. (1) Upon receiving a notice of objection, the
person in ,chArge of a place where the marriage is to be
where a marriage is to be
celebrated in relation to
objections. celebrated shall hear the objection forthwith and if the
person in charge of the place where the marriage is to be
celebrated considers that the objection requires further
hearing, he or she shAll postpone the marriage ceremony
until such time as the objection shall be determine in
accordance with the Regulations.
(2) The person in charge of a place where the

marriage is to be celebrated shall determine an objection
within a reasonable period which shall not be more than
seven days after the hearing of the objection.
(3) Upon determination of an objection, the person in

charge of a place where the marriage is to be celebrated
shall prepare and submit a report of the process of
determination of the objection in the prescribed form to the
parties and the Registrar within seven days of the
determination.
(4) Any person who is dissatisfied with the decision of
the person in charge of a place where the marriage is to be
celebrated may appeal to the Court within fourteen days of
the decision.
Determination of
objection
29. (1) The Registrar shall hear an objection under
section 28 within seven days of the Registrar receiving the
notice of objection.
(2) The Registrar shall determine an objection under

section 28 within a reasonable period but in any case not
more than seven days after the hearing under subsection
(1).
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2014 Marriage No. 4

(3) Any party dissatisfied with the decision of the
Registrar may appeal to the court within seven days of the
decision by the Registrar.
(4) A person who makes a frivolous, malicious or

fraudulent objection commits an offence and upon
conviction is liable to imprisonment for a term not
exceeding five years or a fine not exceeding one million
shillings or to both.
30. A marriage ceremony may not be performed until Effect of an appeal to an

objection.
any appeal that has been made against a decision of the
Registrar to permit the marriage ceremony to be performed
is heard and determined.
31. (1) The court shall hear and determine any appeal Appeal proceedings.
expeditiously.
(2) The court may hear and determine an appeal

despite the failure of any party or other person to appear
before it.
32. (1) Where a person does not object to the Certificate of no

impediment.
celebration of a marriage, the Registrar shall issue the
persons intending to marry with a certificate of no
impediment.
(2) Where a Kenyan wishes to celebrate a marriage

outside Kenya and where that Kenyan is required to obtain
a certificate of no impediment from the Registrar, such
Kenyan shall apply for such a certificate and the Registrar
shall issue the certificate if no person objects to the
intended marriage.
33.(1) Subject to section 25, the Registrar may, by Power of RegiStrar to

dispense with notice.
licence in the prescribed form, dispense with the notice
required by section 27 where there is sufficient reason to do
so.
(2) Before dispensing with the notice, the Registrar
shall confirm that
(a) neither party is within a prohibited relationship;

48

No. 4 Marriage 2014
(b) either party is below ihe minimum age for
marriage;
(c) neither party is married to another person.

Effect of appeal on the 34. (1) The provisions of section 30 apply with the
findings of an objeition.
necessary modifications.
(2) Unless a notice of objection has been withdrawn

the Registrar shall not exercise the power conferred by
section 33 to dispense with a notice.
Contraction of civil 35. When a marriage has been celebrated in the
marriage.
presence of a Registrar, the Registrar shall
(a) complete and sign a marriage certificate in the

(b) cause the marriage to be signed by the parties and
by the witnesses to the marriage and give two
copies of the marriage certificate to the parties and
retain one copy.
Certificate of no 36. (1) If the Registrar is satisfied that no impediment
impediment.
to the intended marriage exists, the Registrar shall celebrate
the marriage.
(2) If a Kenyan wishes to celebrate a civil marriage in
a foreign country in accordance with the law of that
country and the law of that country requires a certificate of
no impediment, the Registrar may issue a certificate of no
impediment.
Civil marriages at the
Kenyan embassy, high 37.A person who is not a Kenyan may celebrate a
commission or consulate marriage under this Part in a foreign country if the marriage
for non- Kenyan
citizens. IS celebrated in the presence of the Registrar or a person
authorised by the Registrar for that purpose in any Kenyan
embassy, high commission or consulate.
Civil marriages in
foreign countries. A marriage celebrated in a foreign country
otherwise than in accordance with section 37 is valid if
(a) it was contracted in accordance with the law of

that country and is consistent with the laws of
Kenya;
49
2014 Marriage No. 4
(b) at the time of the marriage the parties had the
capacity to marry under the law of that country
and is consistent with the laws of Kenya;
(c) either of the parties is at the time of the marriage

domiciled in Kenya, both parties had capacity to
marry under this Act; and
(d) if the Registrar is satisfied that the parties have

obtained a certificate of no impediment if the law
of that country requires the parties to an intended
marriage to obtain such a certificate.
39. (1) A Kenyan may celebrate a civil marriage in a Civil marriages at the
Kenyan embassy, high
Kenyan embassy, high commission or consulate in a commission or Consuls
foreign country if for Kenyan citizens.
(a) it is celebrated in accordance with the law of that

foreign country; or
(b) both parties have the .capacity to marry under the

law of that foreign country.
(2) Despite subsection (1), a civil marriage celebrated

in a Kenyan embassy, high commission or consulate in a
forei^1 country is valid in Kenya if the parties were
capable of celebrating the marriage in Kenya.
40. A civil marriage contracted in a foreign country Recognition of foreign

marriages as civil
shall be recognized as a valid marriage if marriages in Kenya.
(a) it is contracted in accordance with the law of that

country;
(b) it is consistent with the provisions of this Part; and
(c) the parties have the capacity to marry under this

" Act.
41. (1) The Cabinet Secretary may appoint by Appointment of

diplomatic staff as
notice in the Gazette a member of the diplomatic staff of celebrants of marriage.
Kenya in a foreign country to which this Part applies to

celebrate marriages under this Act in respect of that
country.
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No. 4 Marriage 2014
(2) The Registrar shall maintain a register of all
marriages conducted in foreign countries.
Duty to register
_ marriages.
42. (1) A person who celebrates or officiates at a
marriage shall deliver a copy of the marriage certificate to
the Registrar and the Registrar shall enter the details of
such a certificate in a register of marriages maintained for
that purpose by the Registrar.
(2) Where the Registrar officiates at a marriage, the

Registrar shall enter the details of the marriage in the
register of marriages maintained under subsection (1).
(3) A person who fails to register a marriage commits

an offence and shall upon conviction be liable to a fine not
exceeding five thousand shillings or to a community
service order or to both.
PART VMARRIAGE UNDER CUSTOMARY LAW

Governing lay. for
Customary marriage
43. (I) A marriage under this Part shall be celebrated
in accordance with the customs of the communities of one
or both of the parties to the intended marriage.
(2) Where the payment of dowry is required to prove a
marriage under customary law, the payment of a token
amount of dowry shall be sufficient to prove a customary
marriage.
Notification of
customary marriage.
44. The parties to a customary marriage shall notify
the Registrar of such marriage within three months of
completion of the relevant ceremonies or steps required to
confer the status of marriage to the parties in the
community concerned.
Contents of notification
of Customary marriage
45. (1) The notification under section 25 shall
(a) specify the customary law applied in the marriage
of such parties; and
(b) contain a written declaration by the parties, that
the necessary customary requirements to prove the
- marriage have been undertaken.
(2) A declaration under subsection (1) shall contain
the signatures or personal marks of two adult witnesses and
each witness shall have played a key cultural role in the
celebrating the marriage.
51
2014 Marriage No. 4
(3) The notification under subsection (1) shall
confirm
(a) that the parties to the marriage were eighteen years

of age at the time of the marriage;
(b) that the marriage is between persons who are not

within a prohibited marriage relationship; and
(c) that the parties freely consent to the marriage.
PART VI HINDU MARRIAGE
46.This Part shall apply only to persons who profess Application of this Part.
the Hindu faith.
47.(1) A marriage under this Part is may be officiated Persons authorised by

Registrar to solemnize
by a person authorised by the Registrar and in accordance Hindu marriages.
with the Hindu religious rituals of a party to the marriage.
(2) A person authorised to officiate at a marriage

under this Part shall record the details of a marriage under
this part in the prescribed form and shall deliver the record
to the Registrar for the registration of such a marriage.
PART VII =MARRIAGE UNDER ISLAMIC LAW
48.This Part shall only apply to persons who profess Application of Islamic
law.
the Islamic faith.
49.( I ) A marriage under this Part shall be officiated Officiation of Islamic

marriages.
by a kadhi, sheikh or imam as may be authorised by the
Registrar and celebrated in accordance with Islamic law.
(2) A person authorised to officiate at a marriage

under this Part shall record the details of a marriage under
this part in the prescribed form and shall deliver the record
to the Registrar for the registration of such a marriage.
(3) Any provision of this Act which is inconsistent

with Islamic law and practices shall not apply to persons
who profess the Islamic faith.
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No. 4 Marriage 2014
PART VIII APPOINTMENT OF REGISTRAR OF
MARRIAGES AND MARRIAGE OFFICERS
Appointment of
Registrar and Marriage
50. (1) There shall be a Registrar of Marriages who
officers shall be appointed by the Cabinet Secretary.
(2) The Registrar shall ---
(a) perform civil marriages;
(b) register all marriages;
(c) issue marriage certificates for all registered
marriages;
(d) issue certificates of no impediment to persons who
intend to marry and who qualify for such a
certificate;
(e) determine the rules governing customary
marriages; and
(f) determine objections of notices to marry.
(3) The Registrar may 'appoint such marriage officers
at national and county levels, as may be necessary upon
such terms and conditions as may be determined by the
Public Service Commission for the purposes of this Act.
Appointment of marriage
officers in foreign
51. (1) The Registrar may by notice in the Gazette,
countries. appoint a member of the diplomatic staff of Kenya in a
foreign country to celebrate civil marriages for the
purposes of this Act.
(2) A person appointed under subsection (1) shall

keep a record of all marriages celebrated that that person in
that country and shall deliver the record to the Registrar for
the registration of such marriages.
Licensing ministers of
faith. 52. (1) A minister of faith may apply to the Registrar
to be appointed as a marriage officer for the purposes of
this Act.
(2) The Registrar may appoint a minister of faith who

makes an application under subsection (1) as a marriage
officer.
(3) The Registrar shall issue a person appointed as a

'marriage officer under this section with a license.
53
2014 Marriage No. 4

(4) A person appointed as a marriage officer under
this section may only officiate at marriages celebrated
according to the traditions of the faith in which the minister
of faith serves.
(5) The Registrar may cancel a license issued to a

person under this section and shall give written reasons for
such withdrawal.
(6) A licence granted in respect of marriages under

any law in operation before the commencement of this Act
shall, if the licence has not been cancelled at the
commencement of this Act, be deemed to be a licence
granted under this section.
PART IXREGISTRATION OF MARRIAGES
53. (1) Where a marriage is celebrated under Part III Registration of Christian
marriages.
of this Act, the person officiating at the marriage shall
forward a copy of the certificate of marriage to the
Registrar within fourteen days of the celebration of the
marriage for the registration of that marriage.
(2) Before the Registrar register's a marriage under

subsection (1) the Registrar shall confirm that the marriage
complies with the provisions of this Act.
54. (1) Where the Registrar celebrates a marriage Registration of civil

marriages.
under Part IV of this Act, the Registrar shall register the
marriage.
(2) Where a marriage officer celebrates a marriage

under Part IV, the marriage officer shall record the details
of the marriage in the prescribed form and forward the
record to the Registrar and the Registrar shall register the
marriage.
(3) The Registrar shall issue a certificate of marriage

to the parties to a marriage celebrated under Part IV of this
Act.
55. (1) Where the parties to a marriage under Part V Registration of

Customary marriage.
have completed the necessary rituals for their union to be
recognised as a marriage under the customary law of any of
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No. 4 Marriage 2014
the parties both shall apply to the Registrar within six

months of their marriage for a certificate and both shall
appear in person before the Registrar to be issued with the
certificate of marriage.
(2) Where the Registrar is satisfied that the parties to a

marriage under Part V have complied with the provisions
of this Act, and the parties have appeared before him in
person, the Registrar shall register the marriage and issue
the parties with a certificate of marriage.
Registration of Hindu
marriages.
56. ( I) Where a person authorised by the Registrar
celebrates a marriage under Part VI, that person shall
record the details of the marriage in the prescribed form
and deliver the record to the Registrar and the Registrar
shall register the marriage.
(2) Before the Registrar registers a marriage

celebrated under Part VI. the Registrar shall confirm that
the marriage complies with the provisions of this Act.
(3) The Cabinet Secretary may make rules regarding

the registration of marriages under Part VI of this Act.
Regi!traii
marriages.
'''' i"ls'"""c 57. ( I ) Where a Kadhi, sheikh, Mukhi or imam
authorised by the Registrar celebrates a marriage under Part
VII of this Act, the Kadin, sheikh, Mukhi or imam shall
(a) record the details of the marriage;
(b) issue the parties to the marriage with a certificate

of marriage -. and
(c) deliver the record and certificate to the Registrar.
(2) Where the Registrar receives a record and

certificate of a marriage celebrated under Part VII and the
Registrar is satisfied that the provisions of this Act have
been complied with, the Registrar shall register the
marriage.
Registration of marriages
58. (I) A Kenyan who celebrates a marriage outside
contracted abroad. Kenya may apply to the Registrar to have that marriage
registered and the Registrar may register such a marriage
55
2014 Marriage Noi 4

of ly when the Registrar is satisfied that the marriage
complies with the provisions of this Act.
(2) The Registrar may consider a marriage certificate

issued in that country or such other proof as the Registrar
may consider sufficient before registering a marriage
celebrated outside Kenya and where a marriage certificate
is not in the official languages it shall be accompanied by a
certified translation into the official languages.
59. (1) A marriage may be proven in Kenya by Evidencesof marriage.
(a) a certificate of marriage issued under this Act or

any other written law;
(b) a certified copy of a certificate of marriage issued

under this Act or any other written law;
(c) an entry in a register of marriages maintained

under this Act or any other written law;
(d) a certified copy of an entry in a register of

marriages maintained under this Act or any other
,
written law; or
(e) an . entry in. a register of marriages maintained by
the proper authority of the Khoja Shia,
Ith'nasheri, Shia imam, Ismaili or Bohra'
communities, or a certified copy of such an entry.
(2) Despite subsection (1), a marriage may be proven

in Kenya if it was celebrated in a public place of worship
but its registration was not required, by an entry in any
register maintained at that public place of worship or a
certified copy of such an entry.
60. Where a court grants a decree of the annulment of Copies of decrees of
annulment and divorce
a marriage or the dissolution of a marriage, it shall deliver a to be sent to Registrar.
certified copy of the decree to the Registrar and the
Registrar shall register the annulment or dissolution in a
register maintained for the purpose.
61. (1) Where a marriage celebrated in Kenya is Registration of foreign
annulments and
annulled or dissolved by a decree of a foreign court, any divorces.
party to the annulled or dissolved marriage may apply to
the Registrar to register the decree.
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No. 4 Marriage 2014
(2) Where the Registrar is satisfied that a decree under
this section should be recognised in Kenya as if the decree
was made by a Kenyan court, the Registrar shall register
the decree in a register maintained for the purpose.
(3) An application under this section shall include
(a) a copy of the decree and where the decree is not in

an official language, a certified translation of the
decree in an official language and in the
(b) a declaration under the law of the country in

which the decree was obtained made to a legal
practitioner authorised to witness such a
declaration that states the decree is effective in
that country as if the marriage had been celebrated
in that country.
Endorsement of marriage
registers.
62. (1) The Registrar shall enter the details of the
declaration made under section 8 against the relevant entry
in the register of marriages.
(2) The Registrar shall enter the details of the decree

registered under section 60 against the relevant entry in the
register of marriages and such an entry shall be sufficient
proof that the marriage has been determined by a foreign
decree of annulment or dissolution of marriage.
Correction of errors.
63. (1) A party to a marriage may apply to the
Registrar or to a marriage officer or to a person authorised
by the Registrar to correct a clerical error or omission in a
register of marriage or a certificate of marriage regarding
that person's marriage.
(2) Where the Registrar, a marriage officer or a person
authorised by the Registrar makes a correction under
subsection (1), the Registrar, marriage officer or person
authorised by the Registrar shall sign and date the
correction and shall enter the details of the correction
against the relevant entry in the register of marriage.
(3) The Registrar shall notify the parties to a marriage
of any changes made in the register of marriage or marriage
certificate within a reasonable period of the changes being
made.
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2014 Marriage No. 4
PART XMATRIMONIAL DISPUTES AND
MATRIMONIAL PROCEEDINGS
Dissolution of a Christian marriage
64. The parties to a marriage celebrated under Part III Mediation of disputes in
Christian marriages.
may seek the services of any reconciliation bodies
established for that purpose that may exist in the public
place of worship where the marriage was celebrated.
65. A party to a marriage celebrated under Part III Grounds for dissolution
of a Christian marriage.
may petition the court for a decree for the dissolution of the
marriage on the ground of
(a) one or more acts of adultery committed by the

other party;
(b) cruelty, whether mental or physical, inflicted by

the other party on the petitioner or on the children,
if any, of the marriage; or
(c) desertion by either party for at least three years

immediately preceding the date of presentation of
the petition;
(d) exceptional depravity by either party;
(e) the irretrievable breakdown of the marriage.
Dissolution of a civil marriage

66. (1) A party to a marriage celebrated under Part IV Right to petition for
separation or divorce.
may not petition the court for the separation of the parties
or for the dissolution of the marriage unless three years
have elapsed since the celebration of the marriage.
(2) A party to a marriage celebrated under Part IV

may only petition the court for the separation of the parties
or the dissolution of the marriage on the following
grounds
(a) adultery by the other spouse;
(b) cruelty by the other spouse;

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No. 4 Marriage 2014
(c) exceptional depravity by the other spouse;
(d) desertion by the other spouse for at least three

years; or
(e), the irretrievable breakdown of the marriage.
(3) The petitioner may file the petition with the court
for the separation of the parties or the dissolution of the
marriage despite any effort to reconcile the parties.
(4) The court may refer a matrimonial dispute that

arises in a marriage celebrated under Part IV to a
conciliatory process agreed between the parties.
(5) The proceedings for the dissolution of a marriage

celebrated under Part IV may be adjourned for a period not
exceeding six months as the court may think fit
(a) for the court to make further enquiries; or
(b) for further attempts at reconciliation to be made by
the parties to the marriage.
(6) A marriage has irretrievably broken down if
(a) a spouse commits adultery;
(b) a spouse is cruel to the other spouse or to any
child of the marriage;
(c) a spouse willfully neglects the other spouse for at
least two years immediately preceding the date of
presentation of the petition;
(d) the spouses have been separated for at least two
years, whether voluntary or by decree of the court,
where it has;
(e) a spouse has deserted the other spouse or at least
three years immediately preceding the date of
presentation of the petition;
(f) a spouse has been sentenced to a term of
imprisonment of the for life or for a term of seven
years or more;
(g) a spouse suffers from incurable insanity, where
two doctors, at least one of whom is qualified or
59
2014 Marriage No. 4
experienced in psychiatry, have certified that the

insanity is incurable or that recovery is improbable
during the life time of the respondent in the light
of existing medical knowledge; or
(h) any ther ground as the court may deem

appropriate.
67. Where a foreign court has granted a decree in Dismissal of petition

deception or non
matrimonial proceedings whether arising out of a marriage disclosure.
celebrated in Kenya or elsewhere, that decree shall be
recognized in Kenya if
(a) either party is domiciled in the country where that

court has jurisdiction or had been ordinarily
resident in Kenya for at least two years
immediately preceding the date of institution of
proceedings;
(b) being a decree of annulment, divorce or separation,

it is effective in the country of domicile of the
parties or either of them.
Dissolution of a customary marriage
68. (1) The parties to marriage celebrated under Part V Mediation of
disputes in Customary
may undergo a process of conciliation or customary dispute marriages.
resolution before the court may determine a petition for the
dissolution of the marriage.
(2) The process of mediation or traditional dispute

resolution in subsection (1) shall conform to the principles
of the Constitution.
(3)The person who takes the parties to a marriage

celebrated under Part V through the process of conciliation
or traditional dispute resolution shall prepare a report of the
process for the court.
69. (1) A Party to a marriage celebrated under Part V Grounds for divorce of
Customary marriages.
may "petition the court for the dissolution of the marriage
on the ground of
(a) adultery;
(b) cruelty;
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No. 4 Marriage 2014
(c) desertion;
(d) exceptional depravity;
(e) irretrievable breakdown of the marriage; or
(f) any valid ground under the customary law of the
petitioner.
(2) The Cabinet Secretary may, in consultation with
the communities make regulations for the implementation
of this section.
Dissolution of a Hindu Marriage
Grounds for divorce of
Hindu marriages.
70. A party to a marriage celebrated under Part VI
may petition the court for the dissolution of the marriage
on the ground that
(a) the marriage has irretrievably broken down;

(b) the other party has deserted the petitioner for at
least three years before the making of the petition;
(c) the other party has converted to another religion;
(d) since the celebration of the marriage, the other

party has committed rape, sodomy, bestiality or
adultery;
(e) the other party has committed cruelty on the other;

and
(f) the other party has committed exceptional

depravity on the other.
Dissolution of an Islamic marriage
Governing law for
Islamic divorce matters.
71. The dissolution of marriage celebrated under Part
VII shall be governed by Islamic law.
Registration of divorce
under Islamic law.
72. Where a Kadhi, sheikh, imam or person authorised
by the Registrar grants a decree for the dissolution of a
marriage celebrated under Part VII, the Kadhi, sheikh,
imam, Mukhi or authorised person shall deliver a copy of
the decree to the Registrar.
Annulment of Marriage
Grounds for annulment
of marriage.
73. (1) A party to a marriage may petition the court to
annul the marriage on the ground that-
61
2014 Marriage No. 4
(a) the marriage has not been consummated since its

celebration;
(b) at the time of the marriage and without the

knowledge of either party, the parties were in a
prohibited relationship;
(c) in the case of a monogamous marriage, at the time

of the marriage one of the parties was married to
another person;
(d) the petitioner's consent was not freely given;
(e) a party to the marriage was absent at the time of

the celebration of the marriage;
(f) at the time of the marriage and without the

knowledge of the husband, the wife is pregnant
and that the husband is not responsible for the
pregnancy; or
(g) at the time of the marriage and without the

knowledge of the petitioner, the other party suffers
recurrent bouts of insanity.
(2) The court shall only grant a decree of annulment

if
(a) the petition is made within one year of the

celebration of the marriage;
(b) at the date of the marriage and regarding

subsections (l)(b) and (c), the petitioner was
ignorant of the facts alleged in the petition; and
(c) the marriage has not been consummated since the

petition was made to the court.
74. (1) A petition for annulment may be presented Party to petition for
annulment of marriage.
only by one of the parties.
(2) Where a petitioner alleges facts of which only one

party was ignorant at the date of that marriage, it may be
presented only by that party.
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No. 4 Marriage 2014
(3) Where a petitioner alleges the willful refusal of
one party to consummate the marriage it may not be
presented by the party against whom the allegation is made.
Effect of a decree of
annulment.
75. The parties to a marriage which has been annulled
by decree absolute of the court shall be deemed never to
have been married but a decree of annulment shall not
(a) render lawful anything which was done unlawfully

during the marriage or render unlawful anything
which was done lawfully during the marriage; or
(b) affect the competence of either of the parties as a
witness in respect of anything done or omitted to
be done, or any privilege in respect of
communications between them, during the-
(i) marriage; or
(ii) relieve either party, of any debt properly incurred
on behalf of the other during the marriage.
PART XIOTHER RIGHTS OF ACTION

Effect of a promise to
marry.
76. Except as provided in this section a promise by a
person to marry another person is not binding.
PART XIIMAINTENANCE OF SPOUSE AND

OTHER RELIEFS
Grounds for order of
maintenance.
77. (1) The court may order a person to pay
maintenance to a spouse or a former spouse
(a) if the person has refused or neglected to provide

for the spouse or former spouse as required by this
Act;
(b) if the person has deserted the other spouse or

former spouse, for as long as the desertion
continues;
(c) during the course of any matrimonial proceedings;
(d) when granting or after granting a decree of

separation or divorce; or
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Marriage No. 4
2014
(e) if, after making a decree of presumption of death,
the spouse or former is found to be alive.
(2) The court may order the payment of maintenance

to a spouse or former spouse where a decree of separation,
divorce or presumption of death is issued by a foreign court
and the court may declare that the decree of separation,
divorce or presumption of death is effective for the
purposes of this section.
78. Except where an order for maintenance of a Lapsing of maintenance.

spouse is expressed to be for any shorter period or where
any such order has revoked and subject to section 79, the
order shall lapse
(a) if the maintenance was unsecured, on the death of

the spouse; .
(b) if the maintenance was secured, on the death of

the spouse in whose favour it was made; or
(c) where the person being maintained is subsequently

able to support himself or herself.
79.An order of maintenance' shall lapse upon the re- Termination of an order
of maintenance.
marriage of the beneficiary of the order.
80. (1) The court may revoke or vary a subsisting Revocation and variation
of an order for
order for maintenance of any kind, whether secured or maintenance.
unsecured, if it is satisfied that the order was based or
obtained as the result of any misrepresentation or mistake
of fact or that there has been a material change of
circumstances since the order was made.
(2) The court may vary the terms of an agreement as

to maintenance between spouses wherever made if satisfied
that there has been a material change of circumstances
since the agreement was made despite any provision to the
contrary contained therein.
81. , Maintenance payable to a person under an Assessment of

maintenance.
order of the court shall not be assigned or transferred or
liable to be attached, sequestrated or levied upon for, or in
respect of, any debt or claim.
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No. 4 Marriage 2014
Recovery of
maintenance arrears.
82. (1) Despite any other period of limitation
prescribed by the Limitation of Actions Act, no installment
of maintenance shall be recoverable in proceedings
instituted after a period of three years from the date upon
which the installment accrued.
(2) Subject to subsection (1), arrears of unsecured
maintenance, whether payable by agreement under an order
of the court, shall be a civil debt recoverable summarily or,
where they accrued due before the making of a receiving
order against the party in default, shall be provable in
subsequent bankruptcy proceedings and where they
accrued before death, shall be a debt from the estate of the
deceased.
(3) Subject to subsection (1) arrears of unsecured
maintenance which accrued before the death of the person
entitled shall be a civil debt recoverable summarily by the
legal personal representative of that person.
Compounding of
maintenance.
83. (1) The court may, if it is satisfied that a
disposition of property has been made by the spouse or
former spouse of the person by or on whose behalf the
application is made, within the preceding three years, with
the object on the part of the person making the disposition
of reducing the means to pay maintenance or of depriving a
spouse of any rights in relation to that property , or is
intended to be made with any such object, on application,
set aside the disposition or grant an injunction prohibiting
that disposition, as the case may be.
(2) Where the disposition of property under subsection

(1) is by sale to a bona fide purchaser for value, the court
may grant orders as though the sale had taken place.
(3) In this section, "disposition" includes a sale, lease,

mortgage or other transaction whereby ownership or
possession of the property is transferred or encumbered but
does not include a disposition made from money or monies
worth to or in favour of a person acting in good faith and
in ignorance of the object for which the disposition is
made.
Other relief. 84. (1) The court may order a party to refrain from
molesting a spouse or former spouse.
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2014 Marriage No. 4
(2) No proceedings may be brought to compel one

spouse to cohabit with the other, but a spouse who alleges
that he or she has been deserted may refer the matter to a
conciliatory body.
(3) Where either the husband or wife has, without

reasonable grounds, withdrawn from the society of the
other, the aggrieved party may make an application to the
court for restitution of conjugal rights and the court, on
being satisfied of the truth of the statements made in such
application and there being no legal ground why the
application should not be granted, may order restitution of
conjugal rights accordingly.
85. Custody and maintenance of children shall be Order concerning

children.
dealt with in accordance with the Children Act and any
other written law relating to children.
PART XIII OFFENCES AND PENALTIES
86. (1) Any person who, in a notice of Intention to False statement in the
notice of intention to
marry under section 25 or notice of objection to an marry or notice of
objection.
intended marriage under section 28, makes a false
statement commits an offence and shall on conviction be
liable to imprisonment for a term not exceeding two years
or fine not exceeding two millioh shillings or to both.
(2) A person does not commit an offense under this

section if that person had reasonable grounds for believing
the statement to be true when that person made the
statement.
87. Any person who marries a person who is below Marriage to a person
under minimum age.
the minimum age commits an offence and shall on
conviction be liable to imprisonrhent for a term not
exceeding five years or a fine not exceeding one million
88. (1) A party to a purported celebration of a Marriage of persons

within prohibited
marriage where the parties are within a prohibited marriage marriage relationship.
relationship commits an offence and shall on conviction be
liable to imprisonment for a term not exceeding five years
or a fine not exceeding three hundred thousand shillings or
to both.
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No. 4 Marriage 2014
(2) A person may not be convicted of an offence
under this section if that the person did not know and could
not reasonably have been expected to discover the
relationship.
(3) A person charged under subsection (1) may
include a witness to the purported celebration of the
marriage.
Coercion, fraud, etc.
89. A party to a ceremony purporting to be a marriage
who at the time , knows or has reason to believe that the
consent of the other party was induced by coercion or fraud
or by a mistake as to the nature of the ceremony or that the
other party was suffering from any mental disorders or
mental disability whether permanent or temporary or was
intoxicated or under the influence of drugs, so as not fully
to appreciate the nature or purport or the ceremony,
commits an offence and shall on conviction be liable to
imprisonment for a term not exceeding three years or a fine
of three hundred thousand shillings or to both.
Ceremony performed by
unauthorized person.
90. A person who celebrates a union purporting to be
a marriage and who at the time of the ceremony is not
authorised to do so commits an offence and shall on
conviction be is liable to imprisonment for a term not
exceeding three years or a fine of three hundred thousand
Absence of witnesses.
91. A person who celebrates a union purporting to be
a marriage at which the required witnesses are not present
commits an offence and shall on conviction be liable to
imprisonment for a term not exceeding three months or a
fine not exceeding ten thousand shillings or to both.
Offence relating to the
celebration or witnessing
92. (1) A person commits an offence if that person
of a union. celebrates or witnesses a union purporting to be a marriage
where that person knows or should know that
(a) at least one party is below the age of eighteen

years;
(b) a notice of intention to marry where required has
not been given; or
(c) a notice of objection to the intended marriage has
been given and the objection has not been
withdrawn, dismissed or determined.
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2014 Marriage No ..4
(2) A person convicted under subsection (1) is liable
to imprisonment for a term not exceeding six months or a
fine not exceeding fifty thousand shillings or to both.
PART XIVMISCELLANEOUS PROVISIONS
93.(I) A marriage recognised under section 6 may be Celebration of other
marriages.
celebrated in accordance to the rules made by the Cabinet
Secretary.
(2) The Cabinet Secretary may make rules for the

celebration of any marriage.
Provisions on delegated
94. ( I) The Cabinet Secretary may make regulations powers.
for the better carrying into effect of this Act.
(2) Despite subsection (1), regulations may provide

for
(a) forms to be used and fees to be paid in respect of

any application or licence made or issued;
(b) the manner in which notices of intention to marry

arc to be made known;
(c) the form for the giving of any notice required

tinder this Act;
(d) the form of explanation to be given by a person

authorised by the Registrar to the parties to an
intended marriage in civil form or according to
rites recognized by customary law as the case may
be before asking them whether the marriage is to
be monogamous or polygamous or potentially
polygamous;
(e) the forms of licences and marriage certificate to be

issued by the Registrar;
(f) the form of statement of particulars relating to

marriage to he used by registration officers;
(g) the procedure for registration and the form of

returns to be made and the register to be kept
under this Act;
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No. 4 Marriage 2014
(h) the payment of fees under this Act; and
(i) anything required to be prescribed under this Act.

Rules.
95. The Rules Committee established under the
Cap. 21 provisions of the Civil Procedure Act may make rules
regulating court practice or procedure under this Act.
Transitional
Provisions.
96. (1) A person who, immediately before the date of
Cap. 150 commencement of this Act, was a Registrar of Marriages
Cap. 151
Cap. 156 under the Marriage Act (now repealed) or the African
Cap 157 Christian Marriage and Divorce Act (now repealed), or an
assistant Registrar under the Islamic Marriage and Divorce
Registration Act (now repealed), shall, as soon as
practicable thereafter, send all registers of marriages and
divorces to the Registrar.
(2) Parties to a marriage' contracted under customary

law, the Hindu Marriage and Divorce Act (now repealed)
or the Islamic Marriage and Divorce Registration Act (now
repealed) before commencement of this Act, which is not
registered shall apply to the Registrar or County Registrar
to assistant Registrar for the registration of that marriage
under this Act within three years of the coming to force of
this Act.
(3) The parties to a customary marriage shall register

such a marriage within three years of the coming to force
of this Act.
(4) The Cabinet Secretary may extend the registration

period under this section by notice in the Gazette.
Repeals.
97. The Acts of Parliament listed in the Schedule are
repealed.
Savings.
98. (1) A subsisting marriage which under any written
or customary law hitherto in force constituted a valid
marriage immediately before the coming to force of this
Act is valid for the purposes of this Act.
(2) Proceedings commenced under any written law

shall, so far as practicable, be continued in accordance with
the provisions of this Act.
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2014 Marriage No. 4
(3) Despite subsection (2), an order for judicial
separation or decree of divorce granted under any written
law shall in relation to the powers of the court regarding
maintenance be deemed to be a decree of separation or
divorce as the case may granted under this Act.
SCHEDULE
Repealed Acts s. 135
Cap 150
The Marriage Act.
Cap 151
The African Christian Marriage And Divorce Act.
Cap 152
The Matrimonial Causes Act.
Cap 153
The Subordinate Court (Separation and Maintenance) Act.
Cap 155
The Man Marriage A'nd Divorce Registration Act.
Cap 156
The Mohammedan Marriage Divorce and Succession Act.
Cap 157
The Hindu Marriage and Divorce Act.
THE ROLE OF THE MEDIA IN DEEPENING DEMOCRACY
SHEILA S. CORONEL
EXECUTIVE SUMMARY
Since the 17th century, the role of the press as Fourth Estate and as a forum for
public discussion and debate has been recognized. Today, despite the mass medias
propensity for sleaze, sensationalism and superficiality, the notion of the media as
watchdog, as guardian of the public interest, and as a conduit between governors and the
governed remains deeply ingrained.
The reality, however, is that the media in new and restored democracy do not
always live up to the ideal. They are hobbled by stringent laws, monopolistic ownership,
and sometimes, the threat of brute force. State controls are not the only constraints.
Serious reporting is difficult to sustain in competitive media markets that put a premium
on the shallow and sensational. Moreover, the media are sometimes used as proxies in the
battle between rival political groups, in the process sowing divisiveness rather than
consensus, hate speech instead of sober debate, and suspicion rather than social trust. In
these cases, the media contribute to public cynicism and democratic decay.
Still, in many fledgling democracies, the media have been able to assert their role
in buttressing and deepening democracy. Investigative reporting, which in some cases has
led to the ouster of presidents and the fall of corrupt governments, has made the media an
effective and credible watchdog and boosted its credibility among the public.
Investigative reporting has also helped accustom officials to an inquisitive press and
helped build a culture of openness and disclosure that has made democratically elected
governments more accountable. Training for journalists, manuals that arm reporters with
research tools, and awards for investigative reporting have helped create a corps of
independent investigative journalists in several new and restored democracies.
Democracy requires the active participation of citizens. Ideally, the media should
keep citizens engaged in the business of governance by informing, educating and
mobilising the public. In many new democracies, radio has become the medium of
choice, as it is less expensive and more accessible. FM and community radio have been
effective instruments for promoting grassroots democracy by airing local issues,
1
providing an alternative source of information to official channels, and reflecting ethnic
and linguistic diversity. The Internet, too, can play such a role, because of its
interactivity, relatively low costs of entry and freedom from state control.
The media can also help build peace and social consensus, without which
democracy is threatened. The media can provide warring groups mechanisms for
mediation, representation and voice so they can settle their differences peacefully.
Unfortunately, the media have sometimes fanned the flames of discord by taking sides,
reinforcing prejudices, muddling the facts and peddling half-truths. Peace journalism,
which is being promoted by various NGOs, endeavours to promote reconciliation through
careful reportage that gives voice to all sides of a conflict and resists explanation for
violence in terms of innate enmities. Training and the establishment of mechanisms
whereby journalists from opposite sides of conflict can interact with the other side,
including other journalists representing divergent views, have helped propagate peace
journalism.
The media can play a positive role in democracy only if there is an enabling
environment that allows them to do so. They need the requisite skills for the kind of in-
depth reporting that a new democracy requires. There should also be mechanisms to
ensure they are held accountable to the public and that ethical and professional standards
are upheld. Media independence is guaranteed if media organizations are financially
viable, free from intervention of media owners and the state, and operate in a competitive
environment. The media should also be accessible to as wide a segment of society as
possible. Efforts to help the media should be directed toward: the protection of press
rights, enhancing media accountability, building media capacity and democratising media
access.
2
I. INTRODUCTION
THE MASS MEDIA are often referred to as the fourth branch of government because of the
power they wield and the oversight function they exercise. The medias key role in
democratic governance has been recognized since the late 17th century, and remains a
fundamental principle of modern-day democratic theory and practice.
This paper examines the complex and multi-dimensional linkages among the
media, democracy, good governance and peaceful development. The media shape public
opinion, but they are in turn influenced and manipulated by different interest groups in
society. The media can promote democracy by among other things, educating voters,
protecting human rights, promoting tolerance among various social groups, and ensuring
that governments are transparent and accountable. The media, however, can play anti-
democratic roles as well. They can sow fear, division and violence. Instead of promoting
democracy, they can contribute to democratic decay.
The paper explains the constraints that hobble the medias ability to play a
positive role in new democracies. Monopolistic ownership and stringent government
controls are among those constraints. But the market and the race among media firms
for audience and market share can degrade the quality of media reporting as well. In
addition, unethical journalistic practices and the use of media organizations by various
vested and sometimes, xenophobic, interests contribute to the medias inability to fulfil
their democratic function.
The paper looks at the variety of ways in which the various media have been used
to support democracy and development. The media, for example, have exposed
malfeasance in high office, resulting in the resignation or toppling of heads of state and in
the enactment of governance reforms. In addition, in many new and restored
democracies, the media have contributed to public education and enlightenment,
reconciliation among warring social groups, and to initiating much-needed political and
social reforms. The paper ends with a list recommendations that will help create an
enabling environment for the media and ensure that they make a positive contribution to
democratic development.
II. THE MEDIAS ROLE IN A DEMOCRACY
3
DEMOCRACY is impossible without a free press.
This is a precept that is deeply ingrained in democratic theory and practice. As
early as the 17th century, Enlightenment theorists had argued that publicity and openness
provide the best protection against tyranny and the excesses of arbitrary rule. In the early
1700s, the French political philosopher Montesquieu, raging against the secret
accusations delivered by Palace courtiers to the French King, prescribed publicity as the
cure for the abuse of power. English and American thinkers later in that century would
agree with Montesquieu, recognizing the importance of the press in making officials
aware of the publics discontents and allowing governments to rectify their errors.1
Since then, the press has been widely proclaimed as the Fourth Estate, a co-
equal branch of government that provides the check and balance without which
governments cannot be effective. For this reason, democrats through the centuries have
tended to take the Enlightenments instrumentalist view of the press. Thomas Jefferson,
for all his bitterness against journalistic criticism celebrated the press, arguing that only
through the exchange of information and opinion through the press would the truth
emerge. Thus the famous Jeffersonian declaration: Were it left to me to decide whether
we should have a government without newspapers or newspapers without government, I
should not hesitate to prefer the latter.
Modern-day democrats are as hyperbolic in their praise of the press. Despite the
present-day mass medias propensity for sleaze, sensationalism and superficiality, they
are still seen as essential democratic tools. Contemporary democratic theory appreciates
the medias role in ensuring governments are held accountable. In both new and old
democracies, the notion of the media as watchdog and not merely a passive recorder of
events is widely accepted. Governments, it is argued, cannot be held accountable if
citizens are ill informed about the actions of officials and institutions. The watchdog
press is guardian of the public interest, warning citizens against those who are doing them
harm.
A fearless and effective watchdog is critical in fledgling democracies where
institutions are weak and pummelled by political pressure. When legislatures, judiciaries
1
Stephen Holmes, Liberal constraints on private power? in Judith Lichtenberg (ed), Democracy and the
Mass Media, Cambridge: Cambridge University Press, 1991. pp. 21-65.
4
and other oversight bodies are powerless against the mighty or are themselves
corruptible, the media are often left as the only check against the abuse of power. This
requires that they play a heroic role, exposing the excesses of presidents, prime ministers,
legislators and magistrates despite the risks.
The media also serve as a conduit between governors and the governed and as an
arena for public debate that leads to more intelligent policy- and decision-making.
Indeed, the Enlightenment tradition of the press as public forum remains strong. The
press, wrote U.S. television journalist Bill Moyers in the early 1990s, should draw
citizens to the public square and provide a culture of community conversation by
activating inquiry on serious public issues.2 In new democracies, the expectation is that
the media would help build a civic culture and a tradition of discussion and debate which
was not possible during the period of authoritarian rule.
Not just journalists, but eminent contemporary thinkers like Nobel laureate
Amartya Sen ascribe to the press the same cleansing powers that Enlightenment
philosophers had envisioned. Sen outlined the need for transparency guarantees such as
a free press and the free flow of information. Information and critical public discussion,
he said, are an inescapably important requirement of good public policy. These
guarantees, he wrote, have a clear instrumental role in preventing corruption, financial
irresponsibility and underhanded dealings.
Sen sees the media as a watchdog not just against corruption but also against
disaster. There has never been a famine in a functioning multiparty democracy, he said.
A free press and the practice of democracy contribute greatly to bringing out
information that can have an enormous impact on policies for famine prevention a free
press and an active political opposition constitute the best early-warning system a country
threatened by famine could have. 3
Since the late 1990s, donor countries and multilateral organizations have also
been preaching the virtues of a free press not just in ensuring good and accountable
governance but also as a tool for poverty reduction, popular empowerment and national
reconciliation.
2
Bill Moyers, Overcoming Civic Literacy in Media Reader: Perspectives on Mass Media Industries,
Effects, and Issues, 2nd Edition, Belmont: Wadsworth Publishing Company, 1993.
3
Amartya Sen, Development and Freedom, New York: Anchor Books, 1999.
5
The United Nations Development Programme (UNDP) says that addressing
poverty requires not just a transfer of economic resources to the needy but also making
information available to the poor so that they can participate more meaningfully in
political and social life.4 After all, the poor cannot assert their rights if they dont know
what these are. If they are unaware of the laws and procedures for availing themselves of
their entitlements or the mechanisms they can use to remedy their deprivations, they will
always remain poor. Democracy cannot take root if the poor and powerless are kept out
of the public sphere. The argument is that effective media are the key as they can provide
the information poor people need to take part in public life.
Ideally, the media should provide voice to those marginalized because of poverty,
gender, or ethnic or religious affiliation. By giving these groups a place in the media,
their views and their afflictions become part of mainstream public debate and
hopefully contribute to a social consensus that the injustices against them ought to be
redressed. In this way, the media also contribute to the easing of social conflicts and to
promoting reconciliation among divergent social groups.
All these are extrapolations on the medias role as virtual town hall or public
square: by providing information and acting as a forum for public debate, the media play
a catalytic role, making reforms possible through the democratic process and in the end
strengthening democratic institutions and making possible public participation, without
which democracy is mere sham.
III. CONSTRAINTS ON THE MEDIA

THE REALITY, however, is that the media in new and restored democracies are not always
up to the task. For sure, democracy has been a boon to the press. New constitutions are
written that provide guarantees of press freedom and the right to information, allowing
journalists to report on areas that were previously taboo. In addition, democratically
elected legislatures have enacted laws that allow both journalists and ordinary citizens
much more access to information on government policy and the actions of politicians
than in the past.
4
Corruption and Good Governance: Discussion Paper 3, published by the Management Development
and Governance Division, Bureau for Policy and Programme Support, United Nations Development
Programme, 1997.
6
Today, in most countries that have undergone a democratic transition since the
1980s, the press is an important player on the political stage. Journalists are often feared
by politicians because they have succeeded in uncovering corruption, the abuse of power
and assorted malfeasance. They are also relentlessly wooed because a bad press can mean
the end of a political career. Policies have been changed, reforms initiated and corrupt
officials including presidents and prime ministers ousted partly because of media
exposs. In many new democracies, an adversarial press is part of the political process
and it is hard to imagine how governments would function without it.
Yet, despite constitutional guarantees and in many cases, also wide public
support, the media in fledgling democracies have been hobbled by stringent laws,
monopolistic ownership and sometimes, brute force. In 2002, 20 journalists were killed
because of their work and 136 were in prison because authorities were displeased with
their reporting. Many of these victims were reporting in new democracies.5
State controls are not the only constraints. Serious reporting is difficult to sustain
in media markets that put a premium on the shallow and the sensational. A media
explosion often follows the fall of dictatorships. After Ferdinand Marcos was toppled in
1986, for example, scores of new newspapers and radio stations sprang up in the
Philippines, as citizens basked in the novelty of a free press. In Indonesia, hundreds of
new newspapers opened after the 32-year reign of President Soeharto ended in 1998.
Indonesians called it the euphoria press. Euphoria is a wonderful thing, but it does not
always give birth to good journalism. The same is the case for Central and Eastern
Europe and the newly independent states of the former Soviet Union, where there was a
lack of skilled journalists to staff the news organisations created by the media boom. The
boom also results in intense competition, which often means racing for the headlines and
sacrificing substance and depth.
The competition for the market has meant that the media in most new
democracies have succumbed to the global trend of dumbing down the news. This is
especially the case in television, where reports on crime and entertainment drown out the
more important news of the day. The stress on glitzy effects and bite-size news reports
5
Committee to Protect Journalists, Attacks on the Press in 2002. New York: Committee to Protect
Journalists, 2003.
7
leaves no time for serious and in-depth discussion of the issues that matter. The result is
that public discourse is dumbed down as well, as both officials and citizens respond to the
infotainment type of news they get.
Moreover, in many newsrooms, even in affluent countries, tight budgets do not
allow for the investment in time and resources that solid journalism requires. Even as the
media in many countries are a profitable enterprise, media managers would rather put
their money on technology and effects rather than on reportage. In addition, journalists
often do not have the experience and the training to do the kind of contextualised
reporting that a new democracy needs. Even if they did, the pecuniary and political
interests of media owners limit the freedom of journalists to conduct exposs.
In many countries, ownership of the media is controlled by a few vested business
and political interests. A 2001 study of 97 countries by the World Bank shows that
throughout the world, media monopolies dominate. The study says:
In our sample of 97 countries, only four percent of media enterprises are widely
held. Less than two percent have other ownership structures (apart from family or state
control), and a mere two percent are employee owned. On average family-controlled
newspapers account for 57 percent of our sample, and families control 34 percent of
television stations. State ownership is vast. On average the state controls approximately
29 percent of newspapers and 60 percent of television stations. The state owns a huge
share 72 percent of radio stations. The media industry is therefore owned
overwhelmingly by parties most likely to extract private benefits of control.6
Indeed, media owners have not been shy about extracting such private benefits. In
the new democracies, media magnates have used their newspapers or broadcast stations
to promote their business interests, cut down their rivals, and in other ways advance their
political or business agenda. State ownership, meanwhile, allows government
functionaries to clamp down on critical reporting and recalcitrant reporters and enables
the government to propagate its unchallenged views among the people. The interests of
media owners often determine media content and allow the media to be manipulated by
vested interests.
6
Simeon Djankov, Caralee McLeish, Tatiana Nenova and Andrei Shleifer, Who Owns the Media? Draft
paper for the World Banks World Development Report 2001.
8
In Thailand, for example, Prime Minister Thaksin Shinawatra owns the only
independent television network in the country. The rest of the broadcast media is state-
owned or controlled, thus enabling the Thaksin government to have a monopoly of the
airwaves. Anti-Thaksin journalists and commentators have been removed from the air, so
broadcast news is now subservient to the government. The Prime Minister has also
sought to silence the vibrant Thai newspapers by putting the squeeze on their advertising
(he owns the largest telecommunications company, a major advertiser, and has also
banned government ads in critical newspapers) and by initiating an investigation into the
assets of newspaper owners. The result: acquiescence, muted criticism and a general
hushing of public debate on crucial issues.
In some instances, the media are used as proxies in the battle between rival
political groups, in the process sowing divisiveness rather than consensus, hate speech
instead of sober debate, and suspicion rather than social trust. In these cases, the media
can be anti-democratic, contributing to cynicism about government and democratic
decay. The public loses confidence in the media and in democratic institutions in general.
The result is public apathy and democratic breakdown.
IV. GOOD PRACTICES: HOW THE MEDIA HAVE PROMOTED DEMOCRACY AND GOOD
GOVERNANCE
IN MANY NEW democracies, the mass media are challenged by market forces, illiberal
states, and in some cases, a hostile or apathetic citizenry. Yet despite these, news
organizations and media NGOs in many countries have managed to assert the medias
role in buttressing and deepening democracy. The following sections describe some of
the ways in which media groups have lived up to the democratic ideal of the press as
watchdog, public forum, catalyst of social reform, and builder of peace and consensus.
A. Investigative Reporting: The Media as Watchdog

Perhaps the most instructive case is that of Latin America, where it is widely
acknowledged that sustained investigative reporting on corruption, human rights
violations and other forms of wrongdoing has helped build a culture of accountability in
government and strengthened the fledgling democracies of the continent. There, media
9
exposure, particularly of corruption in high places, has helped bring down governments.
The downfall of four presidents Fernando Collor de Mello of Brazil in 1992, Carlos
Andres Perez of Venezuela in 1993, Abdala Bucaram of Ecuador in 1997 and Alberto
Fujimori in 2000 was due in large measure to investigative reporting on their
complicity in corrupt deals. Such reporting has made the press a credible and
prestigious institution in the regions new democracies. Because it has functioned
effectively and independently, the media enjoy the publics support and trust.
In Southeast Asias new democracies, sustained reporting on malfeasance in
public life has resulted in the ouster of corrupt officials and raised public awareness on
the need for reform. In the Philippines, investigative reporting provided evidence that led
to impeachment charges being filed against President Joseph Estrada in 2000 and fuelled
public outrage against his excesses. Estrada was ousted from office in a popular uprising
on the streets of Manila in January 2001. In Thailand, investigative reports unearthed
evidence of the shadowy business dealings of Prime Minister Thaksin Shinawatra. In
Indonesia, the press has uncovered wrongdoing that led to the filing of charges against
high officials, including the powerful speaker of Parliament, Akbar Tanjung, in 2001.
This success has come at a great cost. The New York-based Committee to Protect
Journalists tallied 117 journalists killed in Latin America from 1988 to 1998.7 In the
Philippines, 36 journalists have been slain since the restoration of democracy in 1986.8 In
Thailand and Indonesia, crusading journalists have been beaten up, threatened and killed.
Worldwide, 15 of the 68 murdered journalists in 2001 were slain because of investigative
work related to corruption.9
Most of the murders have taken place in countries where the rule of law is weak
and the judiciary is unable and unwilling to defend press rights. Because the courts are
dishonest and inept, the killers seldom get punished. Those who wish the press ill
whether they are officials, drug cartels or insurgent movements involved in illicit trades
or the protection of crime can operate with impunity.
7
Joel Simon, Overview of the Americas, in Attacks on the Press 1998, New York: Committee to Protect
Journalists, p. 159.
8
Ma. Roselle B. Miranda, Targeting Journalists, Philippine Journalism Review, October 2002, pp. 16-20.
9
Bettina Peters, The Medias Role: Covering or Covering up Corruption? in Transparency International,
Global Corruption Report 2003, Berlin: Transparency International, p.48.
10
It is obvious that at the most basic level, a free press and investigative
reporting are possible only where journalists enjoy some protection. Fledgling
democracies have constitutional and legal provisions to defend the press, but these do not
always ensure that the media can report without fear or favour. The rights of journalists
must be upheld by an independent judiciary and protected by the rule of law. In Latin
America and Southeast Asia, many of those murdered were the victims of small-town
bosses able to terrorise communities because weak states cannot enforce the law and
provide protection to their citizens, journalists included.
That is why the press often seems caught in a chicken-and-egg situation. Its
freedoms are not guaranteed unless other democratic institutions perform their functions
well; but these institutions are unable to do so because there is no independent check on
their performance, in part because the press is threatened and bullied. It is often up to
crusading journalists to break this impasse despite the risks.
In many places, there is no shortage of journalists willing to take on this task. But
many have neither the skills nor the training that investigative reporting requires.
Moreover, news organizations may not be willing to put in the investment in time,
resources for research and the development of reportorial talent that investigative
journalism needs.
Investigative reporting also threatens to upset the cosy relationships between
media owners and their friends among the upper crust of business and politics. Press
proprietors are wary that hard-hitting exposs might turn off advertisers. Given these
obstacles, the only way that investigative reports can make any headway in the media
free market is to show that they can sell newspapers and news programs and that there is
an audience for serious reporting.
The truth is that in many countries, investigative reports do sell. They generate a
great deal of public reaction and bring recognition to news organisations. The key is to
get newsrooms to initiate and invest in investigations despite the costs and the risks. One
way is to convince them of the rewards, in terms of increased audience share, name-brand
recognition or professional prestige. Awards for investigative reporting offer one way to
encourage this trend.
11
Other, less tangible benefits are perhaps even more important. Carefully
researched, high-impact investigative reports help build the medias credibility and
support among the public. The press as an institution is strengthened if journalists have
demonstrated that they serve the public interest by uncovering malfeasance and abuse. A
credible press is assured of popular backing if it is muzzled or otherwise constrained.
Such support may not be forthcoming if journalists squander their freedoms on the
superficial and the sensational.
Moreover, by constantly digging for information, by forcing government and the
private sector to release documents and by subjecting officials and other powerful
individuals to rigorous questioning, investigative journalists expand the boundaries of
what is possible to print or air. At the same time, they accustom officials to an inquisitive
press. Officials eventually realise that releasing information benefits the government.
Without a free flow of official information, journalists will tend to report lies, rumours
and speculations, with no one the better for it. It may take time, but officials must be
convinced that informed citizens make better citizens, even if in the process government
takes a beating in the press. Any government, no matter how corrupt or autocratic, has
reform-minded officials and bureaucrats who appreciate the journalists role and are
willing to co-operate with reporters in the release of information. In the long term, the
constant give and take between journalists and officials helps develop a culture and a
tradition of disclosure.
One way to jumpstart investigative journalism is by conducting special training
on reporting techniques as well as on reading financial statements, constructing databases
and researching on the Internet. Several national and international media groups are now
conducting such training programs. Manuals for investigative reporters, including those
that provide tips on where appropriate documents can be found and the procedures for
accessing them, arm journalists with the tools they need for conducting research.
Independent centres for investigative reporting have been set up in new
democracies like the Philippines, Nepal and Bangladesh. These centres produce model
investigative reports, train journalists and publish training manuals. Through these
efforts, they have succeeded in promoting investigative reporting among journalists and
citizens.
12
In Latin America, Probidad, an NGO based in El Salvador set up a monitored e-
mail discussion group called Journalists against Corruption in 2000. This makes possible
the exchange of articles, opinions, announcements and resources among Latin American
journalists probing corruption. More than 600 journalists have so far signed up. A similar
initiative was established by the International Federation of Journalists in Africa, which
put up a website offering free information to African journalists reporting on corruption
and governance.10
2. The Press as Information Tool and Forum for Discussion
A truly democratic society requires citizen participation. If they do their jobs well,
the media keep citizens engaged in the business of governance and prompt them to take
action. As a tool for information dissemination, the media aid the public in making
informed choices, such as whom to vote for and which policies should be endorsed and
which, opposed.
Ideally newspapers and public affairs programs on radio and television should
inform, educate and engage the public. The medias track record so far in new
democracies, however, is uneven. Because of the need to cater to the market or to
kowtow to the state, the media often shirk their civic responsibility and contribute to civic
illiteracy instead of public enlightenment.
Elections are a key democratic exercise, one where the media can have both
positive and negative impacts. As societies become more modernized and the media
become ever more pervasive, the influence of traditional patrons, parties and institutions
(like churches) on the electoral process is diminished. Instead, candidates and parties
make their appeal and propagate their messages through the media. This is one reason
why election campaigns in many countries are now much more expensive: The cost of
television and newspaper advertising is huge and now accounts for a substantial chunk of
campaign costs. Well-funded candidates often have a better chance of being voted into
office simply because they can buy air time and newspaper space. In some countries,
candidates also bribe journalists and editors who endorse their candidacies in various
ways.
10
Ibid.
13
Media-oriented campaigns have not necessarily meant more enlightened
electorates. As the example of U.S. elections, which are being mimicked by many new
democracies, shows, TV-oriented campaigns tend to put more emphasis on sound bites
and glamour, rather than substance and depth. Candidates preen before the electorate,
whose choices are often determined by how well the contenders project themselves on
the screen.
Still, the media in new democracies have contributed to public education on
elections. Public-affairs programs on radio and television provide the depth, context and
critical analysis that news programs and commercials do not. In addition, in countries like
the Philippines and Indonesia, TV and radio networks have produced sophisticated
public-service announcements enjoining voters to choose wisely and warning them of the
consequences of selling their vote. Debates sponsored by media organizations have been
organised, enabling candidates who do not have the money to buy air time to articulate
their views to a wide audience. The media have likewise given time and space to
independent advocates and NGOs campaigning for clean elections and an end to money
politics. Despite these, however, moneyed candidates who have favoured access to the
media still have the edge. The media playing field, as far as elections go, remains uneven.
In many new democracies, radio has become the medium of choice, taking the
place of newspapers in drawing citizens to the town square for discussion and debate.
Compared to television, radio is a less expensive and more accessible medium and is
especially popular in poor countries where the media infrastructure is not well developed.
FM radio with its localised signal can be an instrument for promoting grassroots
democracy.
In Nepal, it took five years after the restoration of democracy for the government
to give in to demands by civil society and journalists who argued that it was
unconstitutional for the government to monopolise control of the airwaves. In 1996,
Nepal became the first country in South Asia to license a non-governmental FM station,
Radio Sagarmatha 102.4. Today there are 25 FM stations all over the country and many
of them are networked for exchanging programmes and news. FM stations in Nepal have
emerged as a true alternative source of information to official channels, and because they
are local they focus on local issues and reflect Nepal's ethnic and linguistic diversity.
14
By decentralising communications, Nepal's rural broadcasters have shown that
radio can help in giving people the chance to make informed choices and ultimately
strengthen the democratic process. Radio Swargadwari in the insurgency-wracked Dang
district in western Nepal is such a reliable source of information that it is staple fare for
government officials, local citizens and Maoist guerrillas alike.
The Internet, too, has proven to be a much more democratic medium than
newspapers or television, allowing a freer exchange of views for a variety of social
groups. In many new democracies, civil society groups and NGOs have found the
Internet an effective tool for disseminating information and opinion and also for
mobilizing for protest actions. In 2000, in the heat of the mass protest against Philippine
President Estrada, the Internet was a hive of activity for Filipino activists who mounted
cyber-rallies and online signature campaigns, mobilizing students, the middle class and
also overseas Filipinos who could not participate in protests at home. There are some 7.5
million Filipinos working abroad, and it was through the Web that they kept track of
events and took part in social protest.
Elsewhere, the Web has served as a bulletin board for citizens. Interactivity, low
costs of entry and relative freedom from state control give the Internet an edge over the
other media. In Central and Eastern Europe, NGOs and media organizations have used
the Web to educate the public on elections, political parties and candidates. For example,
in the local elections held in Romania this year, independent portals like Romania Online
and Election.ro, which were set up by Internet Service Providers (ISPs), sometimes
jointly with newspapers, provided political news, results of pre-election polls and other
election-related information. Some Romanian students even put up their own website,
Electoral2000.ro, on which they mounted an interactive political game to get citizens
enthused about the elections.11
More traditional media like newspapers have also played an educational and
informational role, filling the knowledge gap that other social institutions cannot breach.
For example, in 2000, the Panamanian daily La Prensa designed a six-week educational
supplement to its Sunday edition, targeted at first and second grade students. The papers
11
Alex Ulmanu, Romanian Election Enters Net Battleground, in Online Journalism Review,
http://www.ojr.org/ojr/technology/1017962590.php.
15
editors believed that students lacked basic information about their country, so the
supplements provided lessons on history, geography and politics. The contents included
new information that students could not get in their textbooks, so teachers used the
supplements in their classes and the newspaper donated copies to 140 schools. These
lessons on citizenship led to a dramatic increase in circulation and advertising, producing
healthy profits for a paper that dared to perform its civic function.12
Media companies often blame the need to compete in a tight market for their
inability to live up to democratic ideals of the press. But recent experience has shown this
need not always be the case. The Indonesian newsmagazine Tempo, for example,
provides a weekly analysis of the news in addition to original reporting on current affairs,
proving that good, solid journalism that appeals to readers as citizens sells. Tempo, which
is one of the most respected and best-selling publications in Indonesia, is seen as a
beacon of democracy and has influenced public opinion on issues of governance, human
rights and ethnic and religious conflict. Its commercial success has not blunted the edge
of its journalism.
3. The Media as Peace and Consensus Builder
Democracy cannot thrive in countries that are in the grip of violence and strife.
Ideally, democracy should provide warring groups mechanisms for mediation,
representation and voice so that they can settle their differences peacefully. If it is
constantly challenged by violence and dissension, the fabric of democracy will become
frayed. Unfortunately, this is the case in many new democracies where the removal of
state restraints has led to the revival of age-old enmities once held in check by
authoritarian governments. The bloody conflicts that erupted in the former Yugoslavia
provide dramatic testimony of this reality.
The experience thus far has shown that the media have not a played neutral role in
conflict. In many cases, they have fanned the flames of discord by taking sides,
reinforcing prejudices, muddling the facts and peddling half-truths. The media have also
been criticised for sensationalising violence without explaining the roots of conflict. The
media ignore peace-building efforts, critics say, even as they give full coverage to
warmongering. In some cases, they have sowed hate speech and encouraged violence. At
12
Cited in the World Bank, World Development Report 2002, p. 182.
16
the height of the conflict in Rwanda in the 1990s, a radio station that had been supported
by international donors became the mouthpiece of extremists who favoured and
encouraged genocide.13
Recognising the crucial role that the media play in conflict situations, many
NGOs have embarked on training journalists in what is called peace journalism, which
endeavours to promote reconciliation through careful reportage that gives voice to all
sides of a conflict and resists explanations for violence in terms of innate enmities or
ancient hatreds. Peace journalism avoids giving undue attention to violence, focusing
instead on the impact of war on communities on both sides of the divide and their efforts
to bridge their differences.
Peace journalism has been promoted through the training of journalists covering
conflict, including journalists who come from the various religious or ethnic groups
currently at war. Various NGOs regularly offer courses on peace journalism.
Innovative approaches include efforts by the Alliance of Independent Journalists
(AJI) in Indonesia, which in 2001 set up in the strife-torn city of Ambon in the Moluccas
Islands a media centre where both Moslem and Christian journalists could get together,
learn from each other and share resources. Since bloody clashes between Moslems and
Christians broke out in Ambon in late 1997, the press became polarized. Moslems,
including journalists, were confined to the Moslem quarter of the city and had no access
to Christian communities. The same was true of the Christians. This resulted in one-sided
reporting and only served to intensify the hatreds in the community. The media centre
facilitated information exchanges and made sources from both Christians and Moslems
available to journalists of various faiths. It also allowed the journalists to get to know and
visit each other, crossing the boundary that had divided the city. These efforts are helping
build trust between journalists on one side and government, NGOs, military and police on
the other. Such trust, in turn, has helped consolidate public support for the peace
process.14
13
Office of Democracy and Governance, Bureau for Democracy, Conflict and Humanitarian Assistance,
U.S. Agency for International Development, The Enabling Environment for Free and Independent Media:
Contribution to Transparent and Accountable Governance, Occasional Papers Series, January 2002, p. 4.
14
P. Bambang Wisudo, Broadening Access to Information as a Way of Ending War Journalism, paper
presented in a conference on Access to Information in Southeast Asia, held in Hua Hin, Thailand, 4-6
March 2002.
17
Another innovative effort to bridge differences among various groups was a
multi-ethnic reporting team that was organized in Macedonia in 1995. The team consisted
of one reporter each from a Macedonian-language daily, an Albanian-language daily, a
Turkish language paper and a Macedonian-language radio station. The team did joint
interviews and field visits to describe the current situation in Macedonia, showing how all
ethnic groups suffered from the economic crisis and how they were battling for survival
in extremely hard times.15
Community radio is especially helpful in bridging the gap between communities.
In Colombia, a group of NGOs and community radio stations formed SIPAZ (Sistema
Nacional de Comunicacion para la Paz or National Communication System for Peace),
which operates in areas where violence involving guerrillas, the military and drug dealers
is particularly intense. SIPAZ encourages the stations in its network to produce and
exchange news that will foster peace and tolerance. It also produces a news program that
is sent via the Internet to 42 community radio stations and NGO partners throughout
Colombia.
SIPAZ does not cover violence and conflict as there is already sufficient coverage
of these in the mainstream media. But it reports on the aftermath and the consequences of
conflicts and provides the context in which the violence takes place. SIPAZ also tries to
articulate the aspirations of communities for peace and development and incorporates
local cultural practices into its programs.16
Radio for Peace International (RFPI or Radio Paz Internacional), based in Costa
Rica, promotes peace journalism on a global scale via short-wave radio and the Internet.
RFPI gets its programs from independent producers and media activists from around the
world. An independent radio station, it aims to enhance understanding by providing a
spectrum of voices to a range of media users who tune in to 24-hour short-wave
broadcasts from the RFPIs transmitters in El Rodeo, Costa Rica. RFPI also monitors and
documents hate radio and the use of the media by extremist groups.17
15
How We Survive: A series of Special Reports from Macedonia, in http://www.media-
diversity.org/articles_publications/how%20we%20survive.htm.
16
Angela Castellanos, SIPAZ: Peace Journalism in Rural Colombia, in
http://www.idrc.ca/reports/read_article_english.cfm?article_num=1029.
17
http://www.rfpi.org.
18
RECOMMENDATIONS AND IMPLICATIONS FOR ACTION
THE MEDIA can make full use of their potential to contribute to the consolidation of
democracy if their rights are protected. Moreover they need to have the requisite skills for
the kind of textured and in-depth reporting that new democracies require. Because the
media are powerful, there should also be mechanisms to ensure they are held accountable
to the public and that ethical and professional standards are upheld. Media independence
is guaranteed if media organizations are financially viable, free from the intervention of
media owners and operate in a competitive media environment. Finally, the medias
power is enhanced if they have broad reach in, and support from, society. Democracy
suffers if large segments of society are inaccessible to the media and therefore excluded
from the arena of public debate.
Various initiatives which have contributed to creating an enabling environment
that allows the media to be an effective agent for deepening democracy and which
strengthen the media as a democratic institution include the following:
Protection of Journalists. In many fledgling democracies, the media become the
target of reprisal from powerful groups and individuals who benefit from the silence of a
muzzled press. Journalists need to be protected by laws that guarantee their rights. In
many new democracies, old laws dating back from the authoritarian past impose harsh
punishments for libel, restrict access to official information and impose strict licensing
requirements for media companies. The repeal of these laws and the enactment of more
liberal legislation can have a liberating effect on the media. So will judicial and legal
reforms that ensure courts will defend the rights of journalists and punish those guilty of
doing them harm.
In many countries, press associations have played an important role in
monitoring, protesting and raising public outrage against attacks on journalists. They
have helped raise funds for libel defence, provided refuge for journalists in danger of
physical attack, and conducted high-level dialogues with officials. In Latin America since
the mid-1990s, the media fended off attacks from officials offended by critical reporting
by forming national press associations. When journalists are united in protesting abuses
against the press and willing to cover attacks against their colleagues even when they
19
come from rival publications, leaders are forced to heed, wrote Joel Simon of the
Committee to Protect Journalists (CPJ).18 National press freedom groups in Peru,
Argentina, Colombia, Brazil, Guatemala and Mexico, together with journalists unions in
Paraguay and Ecuador, have been vigilant in documenting and protesting abuses as well
as raising a public outcry against them.
At a regional level, the Bangkok-based Southeast Asian Press Alliance (Seapa)
has written letters of protest and raised awareness about press rights among officials,
journalists and the public in Southeast Asia.19 Similarly, the Media Institute of Southern
Africa (Misa) monitors attacks against journalists and issues alerts to a network of NGOs
whenever press rights are violated.20
International groups defending the rights of journalists such as Reporters sans
Frontiers, the Committee to Protect Journalists, Article 19, the International Federation of
Journalists and the International Freedom of Expression Exchange (Ifex) provide timely
intervention by loudly protesting any violation of press rights and subjecting erring
governments to international scrutiny.
Enhancing Media Accountability. The medias credibility as a democratic
institution is enhanced if they are accountable to the public, acknowledge their mistakes
and ensure that ethical and professional standards are upheld. A sensational and trigger-
happy press does not contribute to intelligent discussion and debate and soon loses public
support.
In many new democracies, press and broadcast councils composed of media
representatives have taken the lead in enforcing ethical standards and codes of conduct.
These councils mediate between the public and the media. Some hear grievances against
erring news organisations and impose sanctions. The Indonesian Press Council has also
held dialogues involving the media, officials and citizens groups, some of which have
organised their supporters to attack media offices they accuse of unfair reporting. By
18
Joel Simon, Banding Together, in Attacks on the Press in 1998, New York: Committee to Protect
Journalists, 1992, p.201.
19
See http://www.seapabkk.org
20
See http://www.misanet.org
20
providing aggrieved parties a forum for airing their grievances and by explaining to them
how the media work, the Press Council hopes to minimize such attacks.21
Press associations can a play a role not just in defending journalists but also in
raising ethical standards. The Thai Journalists Association has issued warnings to
journalists about possible ethical lapses, including receiving gifts from sources. The
Alliance of Independent Journalists in Indonesia has launched an anti-envelop
awareness campaign where journalists wear T-shirts or ribbons saying, I dont take
envelops, alluding to the common practice of providing reporters envelops of cash
during press conferences.
Independent media monitors and journalism reviews contribute to media
accountability by assessing media performance, exposing unethical practices and inviting
the public to a dialogue about the medias work. Somewhat similar efforts have been
undertaken by womens NGOs in various countries which monitor how the media cover
womens issues. Overall, independent efforts to watch the watchdog have contributed to
the media being more responsive to public sensitivities and to be more vigilant against
lapses in professional conduct. In turn, a professional press is a more effective watchdog
and forum for public debate.
Building Media Capacity. In nearly all countries that have undergone a
democratic transition since the 1980s, it is widely acknowledged that a major factor that
hobbles media development is the lack of skills. Newspapers and broadcast stations
liberated from the constraints imposed by dictatorship find that reporting on a democracy
requires new skills and fresh talent. Freedom alone does not suffice. Journalists have to
be weaned away from reliance on press releases, press conferences and information
ministries. They must learn how to write with depth and insight and also be adept in a
variety of fields.
Newsroom training in many new democracies is sorely lacking. Sometimes, press
institutes, universities and media NGOs pick up the slack. Many donors now fund
training programmes, and many initiatives, such as journalist exchanges, have been
developed. But these do not suffice. It takes time to develop a highly skilled corps of
21
Atmakusumah Astraatmadja, Indonesia: Press Freedom in a Fledgling Democracy, in Watching the
Watchdog: Media Self-Regulation in Southeast Asia, Bangkok: Southeast Asian Press Alliance, 2003, p.
52-57.
21
journalists that a professional press requires and newsrooms too often abdicate their
responsibility to ensure the advancement of reportorial talent within their ranks.
In some countries, the problem is that news organisations remain reliant on state
subsidies and so cannot be truly independent. In other cases, it is not the state but wealthy
businesspeople who subsidise the media, which end up being mouthpieces for their
interests. News organisations must work toward financial viability so they can buy their
independence. As a study on the media in Central and Eastern Europe and the newly
independent states of the former Soviet Union recommended, news organisations should
be given training in financial management as well as assistance in setting up advertising
and business departments. Media owners, the study said, need forums to work out
arrangements such as circulation audits, advertising rates and production and distribution
networks.22
The Media Development Loan Fund based in Prague gives out loans and
assistance to help struggling media companies in new democracies become financially
viable. The Fund also arranges for investors who will infuse new capital in these
companies and introduces new technologies that will help enhance their viability.
Democratising Access. The media can be effective only if they are accessible to
a wide section of the population. Otherwise, they only exacerbate the marginalisation of
social sectors that have access neither to the media nor to the centres of wealth and
power. Efforts to democratise access include subsiding community and local media,
especially in poor and remote areas or in places where groups, such as indigenous
peoples, have traditionally been at the margins of social life. The Nepal Press Institute,
for example, has pioneered in the establishment of community-published wall
newspapers, which are mounted in community centres in the remote reaches of that
mountainous country. Elsewhere, community radio and small cable TV stations have
allowed groups not represented in the national media to have a voice for airing their
grievances and aspirations.
Subsidies that enable poor communities to purchase computers and have Internet
access or community centres that provide Internet access at minimal cost help reduce the
22
Freedom House, Media Responses to Corruption in Emerging Democracies: Bulagaria, Hungary,
Romania, Ukraine, p. 10, http://freedomhouse.org/reports/mediatxt.html.
22
gap between sections of the population that have can afford the new technology and those
who cannot. Public libraries or reading rooms that allow citizens to read newspapers,
especially in places where they cannot afford to buy them, also help make the press more
available to a wider audience. Making the media available to a broad segment of society
helps redress long-standing social inequities and gives representation and voice to
citizens so they can participate more meaningfully in public life.
23
doi: 10.5789/4-2-3
Global Media Journal
African Edition
2010 Vol 4 (2)
Political economy of the Kenyan media - towards a culture of

active citizen journalism
Fredrick Ogenga
Abstract
This paper utilises Halls (1977) encoding-decoding theory in the context of critical
political economy theories of the media and cultural studies to explain the political, economic
and cultural factors that influence media operation and content both at a macro and micro
level. While political economy provides the setting in which the Kenyan media operates,
cultural studies show how media content is not only shaped by the political and economic
environments comprising those in power positions. Audiences are also actively engaged in
the process of meaning construction. Considering Halls (1977) encoding-decoding theory,
the audiences can reject, negotiate or accept media content based on their own value systems
and cultural orientation. Meaning, therefore, becomes a product of continual struggle between
different discourses and power cannot be located in a top down manner as to who influences
meaning as seen in a propaganda model. This is due to the fact that texts are diffused in
different locations in society. The 2008 Kenya Communication Bill is utilised as an example
to trace briefly the political and historical developments of policy issues that have influenced
the Kenyan media. The Bill, furthermore, indicates how a weak socio-economic, political and
cultural environment is marred by ineffectual policies meant to safeguard and guarantee the
freedom of the press as an extension of individual freedom of expression as enshrined in the
Kenyan constitution. This weak policy context has ensured the Kenyan media remains
subject to easy political manipulation and control. However, the paper concludes by showing
how citizen journalism is growing out of a regulated mainstream media through internet
technology.
Key words
citizen journalism, critical political, Communications Bill, cultural studies, economy of the
media, ideology, internet blogging.
Introduction
This paper begins by identifying the role of the media in liberal democracies within a socio-
political, economic and cultural framework: factors that shape media operation in Kenya.
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Issues such as media ownership and political factors influence media content and the manner
in which the Kenyan media operates both at a macro and micro levels.
At a macro level, political factors include media ownership and control. Here political
leaders, through their privileged position, manipulate content through funding, using their
privileged position as official sources and imposing media regulation, censorship and
legislation
At a micro level, the critical political economy of the media includes ideologies of journalism
and various professional routines and work practices that inform the daily recycling of
commercial news content on the one hand. On the other hand there are investigative
journalistic practices, as well as the media fulfilling a watchdog role in a liberal democracy to
safeguard against a return to an authoritarian influence and as a condition for its very
legitimacy.
The paper later departs from the question of how the media operates,and the content therein,
and moves to audience responses and their power and ability to influence and shape the very
same content - content that is being mediated, as opposed to, a top down classical Marxist
ideological approach of political influence exercised by political leaders, especially those that
form the government of the day.
The paper, therefore, recognises the complexity in defining a relationship holistically and
solely influenced and determined by political and economic factors. The paper thus
introduces the idea of culture and the struggle for meaning in public space (the media)
through hegemony and negotiated consent. However, the paper agrees that hegemony is a
product emanating from heavy contestation of different ideas. The media should therefore be
considered as the arena that creates a platform for debate on different socio-economic and
political thoughts. It should thus operate freely and represent this diversity of thought. If the
media succeeds in doing so, then it is a move towards democratic advancement.
However, due to the power of politicians, emanating especially, from a colonial institution,
the media is often threatened, censored and gagged in the name of national interest or state
security or even cultural values. This appears to be the case in Kenya. In such a situation
then, the citizens/audiences find alternative arenas such as the internet to debate contentious
issues of public interest. The search for a free public space for freely expressing their thought
can increase an active participation in what has now been known as citizen journalism
considering that the mainstream media is owned and controlled by few people who have
privileged access to the mainstream media, are in power positions and have the material
capabilities of controlling cultural capital. The paper concludes by suggesting how the
increasing growth of internet blogging could be a product of a societal struggle in the
construction and mediation of political, social and economic and cultural experiences in
Kenya through the media in an attempt to understand or come into terms with reality.
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The media in liberal democracies

The media in liberal democratic countries acts as a watchdog and a custodian of human rights
as a condition for its very existence. Liberal democracy thus implies a low degree of political
control of the media and a high degree of tolerance among political elites for the unwelcome
and critical things which journalists in such systems will write and say. A liberal democratic
political system demands journalistic criticism of elites as a condition of its legitimacy.
Critical and pluralistic journalism is viewed as a safeguard against the possibility of a return
to the authoritarian rule and as a watchdog against the abuse of political power (McNair,
1998 :83) and ( Ogenga, 2008). The Kenyan media is assumed to operate under liberal
democracy.
Political system largely determines the political culture. Considering the Kenyan context,
critical political economy of the media indicates that the media, under a liberal democratic
arrangement, has some degree of autonomy and freedom to report and even criticize the
government but still identifies certain authoritarian tendencies that prevail through censorship
and control (McNair 1998). Political factors include the power of government officials to
manipulate and exercise control over journalists through censorship and media regulation in a
given occasion in order to safeguard national interest or national security, and sometimes
selfish political interests. Journalists are supposed to hold politicians accountable for their
actions and expose corruption.
Leftist critics of liberal democratic political systems, however, see the freedom to attack the
ruling class as opposed to being symbolic and employing superficial attacks on the
management of capitalism, which, by removing the rotten apples from the barrels, ultimately
serves to strengthen the system and its inherent inequalities (McNair 1998). Journalists have
an economic relationship with the state, this is in cases where the political apparatus has
control over sources which can be employed as a means of exercising pressure.
Although the Kenyan media can be said to have a legacy of colonial inheritance, like many
other media in Africa (see Kariithi 1994), it has been structured along the western
commercial model. The argument is that the Kenyan media, due to its structure, operates as a
commercial industry in the business of manufacturing content with a user value that can
appeal to the target market,
McChesney (2003) and Williams (2003) argue that Economic factors/ market forces impact
on the media in ways in which it becomes an industry. The media therefore operates as an
economic institution in the business of cultural production. Journalists come up with news
stories that will encourage readership and therefore sell the readers to advertisers. In a sense,
media owners are in a position to control the kind of news stories that will appeal to their
readers interests and at the same time not offend advertisers. This can sometimes lead to
sacrificing journalistic freedom, creativity and integrity at the altar of owners and advertisers
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who exert a major influence in the content. Journalists for instance, cannot afford to give
negative publicity to their advertisers.
Considering the discussion above on market forces, suffice it to argue that in Kenya politics
are considered newsworthy and often politicians who scoop the lions share as sources in news
stories are relied upon by journalists when covering events leading to some form of framing
and stereotypical representation of issues. Of course the more credible the source, the more
likely the source will be utilised in the process of news construction.
Political economy of the media

This involves the idea of media ownership, the media market and financial support. The
manner in which the media operates is shaped by their owners, the market environment and
the financial support. In this environment, the media manufactures cultural content that
sustains the system capitalism (see Curran, 2000b; Chomsky, 2003). The media is in the
business of maximize profits just like any other business organization in capitalism
(Williams, 2003; Mc Chesney, 2003; Mosco, 1996; Hesmondhalgh, 2007).
Central to this argument is the idea that the product or the content of the media may be
shaped by corporate interests, basically, interest of the owners. Media owners ensure they
appoint journalists who share the same ideologies as theirs in the market driven system into
managerial position to sustain their interests and the interests of a particular class
(Ramaphosa, 1999). News and investigative reports that journalists produce have a value
attached to it for maximizing profits (Chambers, 2000). The media is thus obliged to meet the
needs of owners, the audiences; advertisers as well as media employees by employing a
delicate balance between these stakeholders (Picard, 1989). This obligations influence media
content (Gandy, 1997).
Mbeke (2008) argues that the Kenyan media has never been in a comfortable position with
regard to the political, economic, technological and social environment. Often the media
environment has been politicised and little has been done in terms of policy to address issues
that could lead to a stable, independent and critical media. The media environment has been
volatile, one that gives room for the bullying and gagging of the media whenever the media
strives to function as a watchdog in exposing government scandals and other issues of public
interest.
In Kenya, like many other media outlets in Africa, the government, for instance, owns the
Kenya Broadcasting Corporation in terms of public broadcasting. There is also a good
number of private ownership of the media especially through the dominant Nation Media
Group. But is this all we need? The political and economic environment in which the Kenyan
media operates therefore possibly influences the manner in which the Kenyan media
operates. Unravelling agendas and competing interest in this political and economic
environment can give insight into understanding how the Kenyan media operates for policy
proposals on how it can be transformed. This environment demands that the media conforms
to pressures from politicians on one hand and the audiences and advertisers on the other. The
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environment is characterised by friction that can sometimes lead to framing, propaganda and
distorted representations. This kind of distorted representation raises theoretical concerns in
the idea of realities and meaning in the minds of the Kenyan audience.
What do such kinds of media representations mean to the Kenyan audience?

The encoding decoding model (Hall 1977) in cultural studies indicates how audiences can
reject the content of the media and come up with an oppositional, resistant or negotiated
response when decoding or receiving media content. As a structuralist, Hall argues that
audiences contribute in the production of meaning and will decode media messages based on
their own socio-cultural and economic contexts that shape their realities. Although the media
has the capacity to build consent from a hegemonic perspective, this consent is struggled and
fought for by the ruling class to ensure that the existing or prevailing social relations are
maintained. In the crisis of hegemony, Gramsci argues that force becomes a last resort to win
the consent of the proletariat. However, as we shall later see in this Kenyan case, the citizens
are fighting back through the very same tool that is being censored by engaging into citizen
journalism through internet blogging. In addition technological traits and developments in
media are increasingly being seen to influence traditional mainstream journalism, a factor
that poses a new challenge to the mainstream media if not the government. How then can the
government regulate internet users and blogging for instance and make sure their regulation
is practical? This is another thesis in itself and beyond the scope of this paper. If this seems to
be the case in Kenya though, why contest the media?
Contesting the media in Kenya.

Jurgen Habermas in Fraser (1992) highlights how the media is a constant arena of battle in
democracy by the elite because of the significant influence that it has in representing meaning
and ideologies. Economic power from a classical Marxist perspective, takes on the power to
control and shape reality through mediated ideas. Althusser (1971) and Gramsci (1971) have
viewed the media as ideological state apparatuses and recognise their influence in building
hegemony and spreading ideology. In the reigns of Lenin and Hitler, when technology and
modernisation was improving, the concept of mass society was born. Mass society was
considered a threat to closed conservative societies because the mass exercised enorrmous
influence into public opinion and threatened the existence of the state by breaking down the
structures of a closed society into a sort of global culture commonly referred to as mass
culture.
From a Karl Marx perspective in the 1970s the concept of mass, a culture of consumption,
was capitalised in terms of advertising content, circulation and sales and the media played a
big role in popularising certain capitalistic needs based on commodities and assets and the
means to satisfy those needs through creating demand for the commodities and the assets.
Ultimately, the popularisation of needs including false needs in capitalism by the media was
to make profits and sustain capitalism- a system that ensures the media continues to make
profits: and words such as fetishism were born.
However, from a cultural studies approach, the audiences still remain intelligent, as Hall 1977
explains, and are always critical of whatever content they receive from the media. Audiences
are increasingly involved in the process of media representation by the manner in which they
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decode various meaning from any media content. Furthermore modern media technologies
like the internet give room for immediate feedback and interactivity which broaden the scope
and quality of debates about challenging issues that citizens are faced with such as poor
governance, corruption, crime, HIV/AIDS and hunger.
If media owners on one hand exert some degree of control and influence to the media and the
content, ensuring that the media largely reproduce their ideas, as explained through political
economy and the audiences on the other hand are intelligent enough to reject such contents or
give them a variety of readings within the cultural study context, why then did the Kenyan
media Amend the Kenyan communications Bill?
At this point, it is important to look at the circumstances that led to the Amendments:
1. An election crisis in 2007 that ensured a state of emergency was declared on the
media due to its extensive coverage of the entire process and the controversial results
2. A critical media in 2008 that exposed members of parliament as fat cats and big
spenders who refused to pay taxes and did not care about their constituents.
3. A robust coverage of the civil society activities such as human rights and other
groups, and the controversial debates on extrajudicial killings later evidenced through
the deaths of the Director of the Oscar Foundation Kamau Kingara and programme
coordinator Paul Oulo.
All the three points seem to be excellent in terms of how the media in any democracy has to
operate, critical of the activities of the state as a condition of its legitimacy. Why then is the
Kenyan media loosing independence and appears to be very vulnerable and cannot stand its
ground in the midst of such excellent coverage?
Policy setbacks
In retrospect, the Kenyan media has suffered setbacks in term of various acts of parliament
and amendments based on the socio-economic and political context of particular eras of its
existence. For example historically, the Kenyan media during the Kenyatta era (1962-1978)
was highly monitored and the factors that shaped media law and policy included the urgent
need for national unity and development, political rivalry and ideological issues surrounding
media ownership. The independent government was intolerant towards the press and enacted
the Official Secrets Act in 1968 to deal with a series of leaks that made the government
vulnerable to political pressure (Mbeke, 2008).
Amongst the issues that influenced president Mois attitude (1978-2002) towards the media
was the attempted 1982 military coup, economic recession that led to international monetary
Fund structural Adjustment programmes and popular agitation for economic and political
liberalisation and globalisation. However, these forces were too powerful for Mois
government to contain leading to further Amendments that led to greater liberalisation.
Kibakis administration (2003-2008) had a difficult relationship with an independent,

assertive and watchful media in Kenya: for instance the media exposure of Anglo leasing
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scandal, low public rating, a hostile media and a formidable Orange Democratic Movement
opposition. Kibakis government succumbed to pressure and changed tack towards the media
(Mbeke 2008) creating the Media Council of Kenya for the conduct and discipline of
journalists and the media as a mechanism to provide self regulation of the media. The
Council was financed by the government and the members appointed by the government. In
other words, Kibaki created a control mechanism underscoring the political economy
argument and the capacity of politicians to exercise influence and control of the media
through state machinery as McNairs 1998 indicates.
The Media Council of Kenya was responsible for the banning of all live broadcasting during
the flawed election results in 2007and formed a task force to investigate the conduct of the
media during elections (Mbeke 2008). It is important to note that although the government
seemed to have been tolerant of the Kenyan media in the recent past it has undermined
development in some media forms, for example: the reluctance to support the development of
community media and broadcast in vernacular languages because of its fear of empowering
citizens in a way that would challenge its hold on power and demand good governance
(Mbeke 2008) thus denying Kenyans the crucial recipe for an ideal democracy - pluralism
and lingual multiplicity - to embrace the spirit of Kenya as a nation.
Embarking on Mc Nairs (1998) arguments, that under a liberal democratic arrangement,

while the media has some degree of autonomy and freedom to report and even criticize the
government in liberal democracies, there are still certain authoritarian tendencies which can
be identified that prevail through censorship and control (McNair 1998). This can be done
through various amendments and laws that curtail freedom of expression such as what the
Kenyan government did recently. Consequently, there are political forces that have emerged
in Kenya and are now shaping the environment in which the Kenyan media is operating
through the Kenya Communications Amendment Bill 2008 and the Kenya Communication
Amendment Act 2008, assented to by president Kibaki. These will go a long way in
influencing the content of the media for as long as it remains an Act of parliament. However
there is some hope with proposals to amend it through the consultations of various
stakeholders including media professionals and human rights groups.
What is contentious about this Bill?

An item on the BBC news Friday 2 January 2009 answers the question with a piece entitled:
Kenyan President Mwai Kibaki has signed into law a media bill that journalists say will
curtail press freedom.
By creating the space for the minister of communications to issue future policy guidelines to
the Commission on issues of a general nature related to the provision of this act, the Kenyan
government has created a powerful mechanism for manipulating the media given the politics
of political patronage that have since plagued the Kenyan government. The Bill can thus be
manipulated by political interest group for the purpose of pursuing selfish political interests
considering that the object and purpose for which the commission is established is to license
and regulate postal information and communication services in accordance with the
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provision of this act. This act, furthermore, contradicts itself in the new sections that are
inserted under section 5 as 5B which state that Except as provided for under this Act or any
other law, the commission shall exercise its functions independently of any person or body.
Of course this is not practical in Kenya for reasons that I have just mentioned above. The
inclusion of yet another contradictory Amendment of section 6 states that at least seven other
persons, not public officers appointed by the minister, shall form part of the commission
however the minister will still have power regarding these seven representatives. Clearly
there is much power vested in the minister, and naturally absolute power, especially
considering that the law gives the Kenyan authorities the power to raid media offices, tap
phones and control broadcast content on the grounds of providing national security.
The Kenyan Communications Amendment Bill gives the state power to raid media houses
and control broadcast content. Justifying McNairs 1998 argument on state censorship
president Kibaki defended the Bill by stating that regulating the electronic media would
promote and "safeguard our culture, moral values and nationhood". There is no doubt and as
McNair 1998 observes that this is a perfect example of the authoritarian tendencies that are
still visible even in liberal democracy that curtail freedom of expression. Although the
Kenyan government has insisted that it is committed to press freedom, the countries media
has feared for its independence since a 2006 raid on a TV station and newspaper offices.
So, what next?

Theoretically the argument is that any attempt to use national security of the state or national
interest or moral values and nationhood to make it difficult for citizens to receive or impart
information in terms of freedom of expression amounts to censorship no matter how much
the benefits of such a move might outweigh the losses. This is according to structuralists;
constructionists like McNair (1998); Williams, ( 2003).
However contentious the Bill might seem, the truth is that it is now law. Although the move
might be seen as a way of censoring the media and therefore limiting discourses around
socio-economic and political challenges facing the country. It might have just opened another
public sphere, public space for debating the very same issues through improved internet
technology like blogging, mixit and facebook. Although we hardly come across heavy
criticisms and hard hitting factual questions directed to our leaders by journalists through
traditional mainstream media like TV, radio and print, the online publications are doing it
through citizens.
The citizens are increasingly developing a brand of journalism through internet blogging to
debate issues among themselves, since politicians seem to be beyond their reach through
mainstream channels. Harbermus in Fraser 1992 claims that real freedom and democracy
demands a free press and plurality of thought and the internet has created a space for such
pluralism. The 2008 Kenya Communications (Amendment) Bill is surely pushing even more
Kenyan citizens to actively become critical journalists, little wonder at the height of the post
election violence internet bloggers in Kenya kept the world informed.
Conclusively, private companies and individuals should continue investing in ICT, taking
advantage of government subsidies on computer technology to ensure more people,
especially in the rural areas, are connected. The long-awaited SEACOM and the East African
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2010 Vol 4 (2)
Marine System (TEAMS) fibre optic undersea cable that has officially been launched in
Kenya is a commendable move. The 5,000-kilometer TEAMS cable, for instance which starts
in Fujairah, UAE, and runs to Kenya under the Indian Ocean, is expected to cut
telecommunications costs across the continent and make it easy to invest not only in the
information business, but cut down logistical and research costs among small, medium and
big companies .
The government should also review sections of the Communication Bill that challenge
freedom of expression and amend them, the government must also come up with better
policies concerning media ownership and change colonial inherited policies in the media
industry that have got no significance given the current socio-economic and political
dynamics. The government must create a favourable environment to attract investments in
communications and media technology. It must promote community media especially radio
broadcasting to empower citizens who in turn will make them more accountable. Most
importantly, it must give room for plurality of ideas through encouraging media diversity and
encouraging active participation in civil and other human rights societies. It should exercise
some degree of responsibility in terms of regulating the media by including media owners
and representatives when formulating such agendas. It must therefore come up with policies
and laws that respect the rights to freedom of expression and promote diversity through non
discriminatory languages. Most of these issues are presumed to be addressed in the new
constitution.
Appendix 1
Citizen Journalism
Refer to the following excerpt from Kenyan bloggers about the Media Bill and the perception
of an intelligent audience which does not always necessarily agree with everything the media
says as Hall (1977) indicates:
http://bankelele.blogspot.com/2009/01/media-bill-2008.html
Can we focus on specific issues in a constructive manner? What are the pros and cons of
this bill and how do they measure up against each other?
What exactly is objectionable in the Communications Amendment bill? Why is it

objectionable? Does it invalidate all other benefits of the bill? What is the proposed
alternative?
1 /0 3 /2 0 0 9 6 :3 2 P M
MainaT said...
Good summary. You missed out opening of letters by Posta which they can do without
specific pretixt.
Its a very poorly drafted law with many parts colliding or mixing others.
Sec88 is now reality-btw, it initially didn't include broadcasting equipment. All because
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2010 Vol 4 (2)
Poghisio was annoyed by coverage relating to the allowances he over-ate. My understanding

is that he and media had actually gone thru a draft in which he was to delete sec88 or parts of
it. Majorly, the bill requires editing. Also if CCK is going to have those overarching powers,
it might be prudent to have media representation.
1 /0 3 /2 0 0 9 6 :3 9 P M
KE said...
I've long ago dissuaded myself of the notion that laws in Kenya mean anything. Why did the
MP's even bother changing the law when they can already get away with whatever they
want:
Lucy slaps a reporter (battery) and gets away with it
Michuki raids a media house and destroys their equipment (vandalism) and gets away
with it.
Cholomdely kills 2 people and Amos Wako pretends to prosecute him. Does anyone
believe he'll spend any significant time in jail?
The truth of the matter is, if you have enough money and power in Kenya, you can operate
above the law. We all need to stop fooling ourselves about Kenya being a law abiding state.
kenyanentrepreneur.com
1 /0 4 /2 0 0 9 1 :5 6 AM
Maishinski said...
@KE
Exactly! I could not have put it any better myself. The so-called Media Freedom is an
illusion and has never existed since independence. There was no media bill when Lucy,
Michuki and Arturs raided the media - with IMPUNITY.
And the damage was great - including assault. Did they face justice? Was any one of them
demoted? Was there any consequence for their actions? Was there any press freedom then?
In Moi days (and laws haven't changed) police could seize and destroy equipment etc. Kibaki
has the same powers and can use them any time - Media bill or not! The media should stop
CHEATING Kenyans about what is really happening on the ground. Our leaders and those
connected to them are generally above the law.
All the AG has to do is issue a nulle prosequi and thats it - case closed! As long as cops
can arrest you on the streets and lock you up for loitering, as long as colonial laws still
govern us, as long as executive powers are vested in one or two individuals we cannot claim
to be free!
We need to ask tough questions and seek some painful answers. How did the bill get to the
president? Who passed the bill in Parliament? Isn't it the same tax evading thugs raving at the
President? Aren't the MPs really just as guilty as Prezzo for betraying Kenyans (if that is
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2010 Vol 4 (2)
really what has happened) by failing to exercise due diligence in their work?
Now the dumb sheep will follow their shepherds and start protesting loudly for NOTHING
(really) bringing further shame to our country. Ninety percent of those to be tear-gassed in the
streets will not have read the bill (let alone analysed it rationally).
If you were to stop a protester and ask them to specifically say what the issue is, why they
are on the streets and how it can be addressed you will get the dumbest responses on this
planet. Then you realise that the poor morons dont even read the papers and are, in fact, just
venting about NJAA (hunger) rather than media bill.
Consequences: External parties will see political instability... economic recovery is delayed
further as investors review their position... inflation continues food shortage.. Fast
forward... May 1, 2009 - Labor day: PM walks to the dais and the same stupid sheep (now
more hungry than ever) start chanting UNGA! UNGA! UNGA!
Seriously.how dumb can people get?
1 /0 4 /2 0 0 9 8 :3 9 AM
About the author
Author: Fredrick Ogenga

Title: The author is currently a media consultant and analyst. He has a bachelors and a
masters degree in Media & Journalism studies. He is also a freelance writer, a reporter for
africanews.com, a lecturer in Media & Journalism and the founding director of Tazama
Media Consultants closed corporate company. He is pursuing a PHD in media studies at the
University of Witwatersrand.
Email address: braco_od@yahoo.com
Physical address: 48 Dekorte & Station street, Braamfontein, Johannesburg. South Africa.
Cell: +27 (0) 76 0153549
Authors personal web page: www.tazamamediaconsultants.blogspot.com
References
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media and society. London: Arnold, 120-152
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89-107
Gandy, O.H. 1997. The political economy approach: a critical challenge. In Golding, P. & Murdock,
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(eds). Mass communication and society. London: Edward.
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Kariithi, N. 1994. The crisis facing developing journalism in Africa. In Media development. 4: 28-30
Legum, C. 1971. The Mass Media-Institutions of the African Political Systems. In Stokke, O. (ed.).
Reporting Africa in African international mass media. Uppsala: The Scandinavian Institute of African
Studies: 27-38
McChesney, R. 2000. Rich media, poor democracy: communication politics in dubious times. New
York: The New Press
Mbeke, P. O. 2008. The media , legal, regulatory and policy environment in Kenya.. A historical
briefing. School of Journalism and Mass Communication. University of Nairobi Kenya
McNair, B. 1998. The sociology of journalism. London: Arnold
Mosco, V. 1996. The political economy of communication. rethinking and renewal. London: Sage
Nancy, F.1992. Rethinking the public sphere: a contribution to the critique of actually existing
democracy . In Habermas and the public sphere (Craig Calhoun, ed.). Cambridge, MA: MIT Press.
109-142.
Ogenga, F. 2008. The role of the Kenyan media in the 2007 elections. EISA Journal of African
Election. Vol 7 (2)
Picard, R.G. 1989. Media economics: concepts and issues. Newbury Park: Sage
Ramaphosa, C. 1999. The Media, the editors and the owners in Financial Times
14-05-1999: 20-21
Williams, K. 2003. Understanding media theory. London. Arnold.
http://bankelele.blogspot.com/2009/01/media-bill-2008.html
www.bbcnews.com
http://www.eastandard.net/downloads/kca_act_2008.pdf
162
ISSN 1821-6544
African Communication Research
a peer-reviewed journal
Published by the Faculty of Social Sciences and

Communications at St. Augustine University of Tanzania,
Mwanza, Tanzania
as a service to communication research in Africa.

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This issue dedicated to
Media Councils in Africa
African Communication Research, Vol. 5, No. 2 (2012)
African Communication Research, Vol 5, No. 2 (2012)

Contents
Volume 5, No. 2 September, 2012
Editorial 135
What makes media councils work well?
Robert A. White
Media regulation in emerging democracies: The example of

Kenyas hybrid model 139
Levi Obonyo
Daystar University, Nairobi
Clayton Peel
Daystar University, Nairobi
Media Self-regulation in young democracies: Just how effective

are voluntary Media Councils? 161
Ayub Rioba
Institute of Journalism and Mass Communication
University of Dar es Salaam, Tanzania
A long wave of novelty: The tension, social and legal test in the 197
delivery of a National Media Commission in Ghana
Osei Kwadwo Adow
Ghana Institute of Journalism, Ghana
Who watches the watchdog? Evaluating the contribution of the

Media Council of Malawi (MCM) to the quality and 225
performance of the media in Malawi
Peter Mhagama
Polytechnic University of Malawi, Malawi
Maclan Kanyangwa
Polytechnic University of Malawi, Malawi
An assessment of fhe Nigerian Press Council in the regulation

249
of journalism practice in Nigeria
Nicholas S. Iwokwagh
Federal University of Technology, Minna, Nigeria
Moses L. Akurega
Benue State University, Makurdi, Nigeria

Editorial:
What makes media councils
work well?
The evaluations of the performance of the five media councils in
Kenya, Tanzania, Malawi, Ghana and Nigeria do not paint a picture of
general success of media councils in Africa. Other informal reports
from Zambia and Cote dIvoire also show disappointing results. There
is almost universal agreement, however, that some form of non-
governmental, professionally-based monitoring of media abuses is
preferable to interventions against journalists on the part of the coercive
power of the state. There have been vigorous reactions throughout
Africa against statutory councils that seem to allow governments to
take punitive action against journalists. Kenya seems to be a case where
the council gets government financial support in a way that does not
invade professional freedom.
What seems to be the positive contribution of Media Councils in the
African context?
1. Virtually all of them are making some effort to adjudicate
complaints of defamation, false information or other abuses in
a way that is seen as fair and preferable to the long, expensive
process of the courts. Although most councils deal with
relatively few cases in a year5 to 15they are handled
quickly.
2. There is some evidence that offering the public the right of
appeal does make the media more careful in using aggressive
and abusive journalistic practices.
3. Virtually all media councils have introduced a standard, widely
accepted code of ethics which can be a useful set of journalistic
guidelines in a country.
4. Many of the councils have a very useful program of training of
journalists in the area of media ethics and specialized areas
such as environmental journalism, human rights journalism or
political reporting. Often the media council will influence the
strength of the professional (and ethical) training in the
university journalism programs.
5. Some of the more active have a series of useful training
publications.
African Communication Research, Vol 5, No. 2 (2012) 135 - 138

135
Robert A. White
What seem to be the factors of success of media councils.

The members of the governing council are important, but clearly,
the major factor is vigorous, imaginative management of the media
council which not only introduces good programs but also is able to get
the funding. Effective management gets competent staff, makes them
work efficiently, and pays them well. The best example is the Media
Council of Tanzania (MCT) which currently has an annual budget of
US$1,000,000 coming mainly from donor foundations. The MCT has
many effective programs which gets it very ample funding.
A second factor of success is having the broad and united support of
prestigious people with many lines of influence in the society. The
governing council often includes persons of this background.
Particularly important is the presence and support of influential leaders
who have a solid vision of national development and communication
development. The best often have strong academic credentials with
ties to major national and international policy makers. These lines of
influence extend into the worlds of government, politics, business, the
churches and, of course, the media businesses. These prestigious
persons can isolate potential opposition and rally important unified
cooperation.
Another important factor is a stable government and political
leadership which respects at least the mechanisms of procedural
democracy. Especially important is the independence of the judiciary.
This sort of government will respect the tradition of media freedom
and a non-statutory media council, in part, because of all the benefits
this brings from internal national support and international support.
The concentration of political power in countries such as Uganda is an
example of a situation of continual threat to journalistic freedom.
A further important factor is the leadership of editorial teams in the
media of the countrymature, well-educated in terms of ethical,
professional standards. These editors are the real owners of a media
council. The backing of this editorial leadership by good proprietors is,
of course, important. Good editorial leadership implies that the editors
have an agenda of promoting democratic procedures, major goals of
national development and know how to direct the influence of public
opinion on crucial issues.
Where the media councils are functioning well, there is considerable
interaction and consensus among all these major actors on how to
improve the quality of media services and the role of the media council
in this. Where the media councils have not been functioning well, the
136
Editorial
basic cause seems to be the lack of mutual interaction, agreement and

will to reach a consensus about what the council should do. Often, the
different factions each want to form its own independent council. In
the end, none of the organizations functions well.
To sum up, the success of a media council depends very much on
the unified desire of the leadership in the media community--editors,
proprietors, prestigious moral and intellectual leaders, leaders in
journalism education, associations of media professionals, the media
advocacy organizations--all aiming to make the media a true service to
the development of the nation.
Robert A. White
Coordinating Editor

137
Robert A. White
138
Media regulation in emerging
democracies: The example of Kenyas
hybrid model
By Levi Obonyo and Clayton Peel
Abstract
Regulation of the media is, in some form, a negotiation between the media,
those in power and the general public. The Media Council of Kenya, after
an initial experiment with a statutory council and then a non-statutory
council, is a mix between a non-statutory council but depending on
government funding. Because of the years of government hostility to the
media, leaders among journalists preferred a non-statutory council.
However, the non-statutory council that was established could not fund
itself and seemed to have little effectiveness in its regulatory efforts because
of the lack of official backing. The government funding and representation
on the council does not seem to be dominant because it is through
parliament and is multi-party in nature. In effect, Kenya has worked out
a third way between a statutory and non-statutory council.
Key words: statutory media council, regulatory agencies in Africa,

Kenya media
Introduction:
To self-regulate, or to be regulated by the state? This is a question
that is not so much a choice confronting journalists, as it is a situation
to be negotiated between the media, those in power and the general
public. Often the confrontations between these three major actors
demand urgent negotiation, and media councils can be mediators or
the site of mediation. Countries where the media sector has been
Author biographical note
Levi Obonyo (lobonyo@daystar.ac.ke) is Dean of the School of Communication, Language
and Performing Arts at Daystar University and is the immediate past chairman of the Media
Council of Kenya. He is the current president of the East African Communication
Association. He has published extensively on print-media cartoons, Kenya post-election
violence and is co-author with Erneo Nyamboga of Journalism and the Rule of Law.
Dr. Clayton Peel (cpeel@daystar.ac.ke) is Senior Lecturer in Communication and
Journalism at Daystar University. A native of Zimbabwe where he was deputy editor of The
Chronicle and was involved in the formative stages of a voluntary regulatory agency in
Zimbabwe, he has published on the Zimbabwean journalistic diaspora and religious
broadcasting in Zimbabwe.
139
Levi Obonyo and Clayton Peel
complacent and the civil society reluctant to engage those in power, the
media have had that choice made for them by governments which
decided it was time to subject the media to rigorous statutory control.
As is often the case, when governments seek to take on the media they
may choose to compromise the civil society immediately before the
public has a chance to react. The assault on the media is made so fast
that there is hardly time to rally the media sector or the civil society to
the cause of freedom of expression.
Zimbabwe is one such example where the government has decided
to subject the media to rigorous statutory control (Compagnon, 2011,
p. 131; Chuma, 2011, p. 271). Kenya began to travel the path of
statutory control and then changed gears, first towards an independent
regulator before settling for the middle ground between statutory and
self-regulation. There are other contexts where the media were
successful in adopting self regulatory methods, sometimes to their
governments satisfaction. This fortunate case happened with Kenyas
hybrid (Obonyo & Nyamboga, 2011, p. 5) and Tanzanias independent
regulator (Lush, 1998, p. 54) where the experiment with self-regulation
is ongoing.
But self-regulation has not been a long or consistent tradition in
Africa. In Uganda for example, President Yoweri Kaguta Musevenis
government moved in 1995, over strident objections by journalists, to
establish a media council directly under the authority of the information
minister, reflecting the view at the time the law was passed that
journalists often operated irresponsibly, outside any code of ethics, and
required oversight (Kayanja, 2002, p. 161). Uganda presents an
interesting study where, in objection to Musevenis move, 42 media
houses set up an Independent Media Council of Uganda in 2006. The
study of how the varying approaches to regulated media practice are
evolving in the African context must be situated in a wider debate.
Even in Western so-called mature democracies, government legislation
of media leaves many questions about how much free expression can
be allowed.
Obviously, not all state authorities seek the delicate balance between
free expression and imposed norms of responsibility. African
governments, with notable exceptions, have had a deep unease over
media autonomy. More than a decade into the third millennium, with
online journalism, citizen journalism and individual blogs challenging
archaic journalism accreditation processes, there are still
governments insisting on a bureaucratic regulation of the media.
140
Media regulation in emerging democracies
African leaders call for a patriotic journalism, a development press,

one that would assist in the positive development of theirnation
states. They wanted a cultural stamp of their own making and not one
imported from core nations or Made in the USA (McPhail, 2011, p.
65). On a few occasions, governments were ready to consult the
industry, but within a paradigm that the governments wanted to
introduce. In Tanzania, where the government drew up plans in 1993
for a state-directed media council, before relenting and allowing
journalists to create their own regulatory mechanism, the leading
argument was that the state must instill a sense of responsibility and
public service among media workers.
As Nyamnjoh more directly puts it, African leaders often want a
conformist media that takes government objectives for their objectives
(Nyamnjoh, 2005, p. 161). In the words of Zimbabwes first post-
independence Director of Information, Justin Nyoka, Freedom of media is
a spurious western concept, since media always reflect the particular values
of a place. Journalists should be sensitive to the direction of the
government (Zaffiro, 2002, p. 107). Even the more liberal South
African government has vacillated in its stance on media freedoms. The
governing African National Congress is now increasingly
uncomfortable with the countrys media and pushing for a statutory
mechanism to set and enforce media standards (Kruger, 2009, p. 7).
Conversely, the global standard appears to have moved towards non-
statutory enforcement (Article 19, 2006). In African contexts where
governments are moving to regulate media, the response of the media
and the civil society is angry protest or, at best, cautious acceptance.
Aspirations towards statutory regulation by the South African
government have drawn sustained criticism from within South Africa
and abroad. However, the media background and the country
experiences where some form of regulation has been insisted upon are
not uniform in nature. It is in this context that the unique Kenyan case
is worth exploring.
Purpose Statement
The strangulation of media, as happened in Zimbabwe in the last
decade, contrasts with an apparently genial consensus over media
regulation that is emerging in Kenya. The self-regulatory mechanism
that does apply in Tanzania today is also different. An alternative model
is some form of combined statutory and self-regulatory mechanisms
such as is operating in Uganda. Each of these regulatory forms provides
141
lessons for students of media responsibility and regulation. They also

provide models of negotiation between the many stakeholders involved
in building media systems. Also pertinent are the social and political
histories of the respective countries and how these histories impact on
the media organizations? If the regulatory mechanisms and the
frameworks in which they are situated are contested, whose interests
are paramount? These are just some of the issues that must be taken
into consideration.
This paper does not attempt to answer all of these questions. Here
we explore the literature in media regulation as a basis for outlining the
evolution of the Kenyan model as an example of a compromise that
may address some of the weaknesses of both self and statutory
regulation while also taking advantage of the strengths of both.
Disparaging assessments of media regulation in African countries
lack authenticity if they do not document and engage with operations
within those frameworks. There are already too many superficial
assessments leading to simplistic, negative views of Kenyas media
regulatory framework (Article 19, 2006, p. 3).
Situating the Kenyan media environment in its context could
provide a more nuanced understanding of the many factors involved in
drawing conclusions that such analysis may come up with. The other
useful purpose served by this paper is understanding media
regulations complex situation within and beyond the authoritarian-
libertarian binaries. The possibility that both media workers and
governments are motivated by a desire for freedom of expression and
social responsibility within some combination of statutory or non-
statutory regulatory frameworks may also be explored. The binaries of
libertarian and authoritarian media governance are legitimate. But the
libertarian view has taken a direction in which media are asked to
assume more responsibility for their own performance than merely to
present their own ideas freely, and government (has) undertook, even
in the most libertarian societies, more acts of control (Davison, Boylan,
& Yu, 1982, p. 42). This government control, or lack of it, within
demands for a more socially responsible media, is a key consideration
in this discussion.
The background of the debate over statutory or non-statutory

regulation
The concept of statutory governance versus independent self-
regulation of the media has preoccupied scholars for decades.
142
Governments and media worldwide have reflected, debated, and

legislated on the issues since the end of the Second World War long
before the genesis of regulation processes now accelerating in the post-
independence sub-Saharan states (McPhail, 2011). In a detailed
account, McPhail charts the debates over decades between proponents
of a free flow of information, who were usually from the liberal
democracies of the West, on the one hand, and a combination of Soviet
and Warsaw Pact countries and the newly-liberated ex-colonies, on the
other. This includes those in Africa, whose leaders have argued that the
political, social, and cultural environments that were taking shape in
the new nations they governed required a government-driven, national
unity and development-focused approach, rather than a free-for-all
determined by market factors.
Literature by early fathers of African nations clearly suggests a
strong government role. For example, according to Kenyan Tom
Mboya, the role of the media was to contribute to the development of
the nation state, with specific focus in improving the economy and the
lifestyle of the masses. The media, he said, was to be judged on the
basis of whether media was hostile or sympathetic to the national
cause; was it reactionary or progressive; was it identified with the
imperialist forces and money interests in the former colonial countries;
and how far is it regarded as a tool of foreign penetration and an agent
of neo-colonialism (Mboya, 1970, p. 136). The success of the African
media, he suggested, was to be gauged on the extent to which it
contributed to the fight against malaria and in the citizens adoption of
better farming methods. And in the 1967 manifesto, the Tanzanian
government under the leadership of Julius Nyerere, saw the media as
one of the pillars of national development.
The founding fathers of postcolonial states may have had legitimate
concerns in the face of the huge challenges presented by nation-
building and the need to use the media at their disposal to foster
messages appropriate to the tasks. But their aspirations, however well-
meaning, became linked to Soviet-style totalitarian objectives, which
were to resist a free media environment. The aims of Soviet media
theory were clear: under the guise of preventing capitalist ownership of
the means of discourse and preserving media outlets for the good of
the proletariat, the governments took permanent control of every
outlet which would have diluted the regimes guidance of public
discourse (McPhail, 2011, p. 69).

143
The likelihood that this mindset influenced the motives of the

postcolonial governments is high. Scholars are broadly agreed that
African governments became more concerned about retaining political
power and closing the space for alternative political views than
pursuing their original development goals (Nyamnjoh, 2005).
Regarding the Kenyan context, Mbeke, Ugangu, and Okello-Orlale
wrote:
in the years following independence, the Voice of Kenya

transformed into a propaganda department for the state a
complete deviation from the purely developmental goals it
was supposed to play in the fight against poverty, disease
and ignorance. Draconian press laws curtailed press
freedom and other forms of public agitation. The new
leaders realized that influence and control over the flow of
information was a necessary precondition for stemming
undue criticism, consolidating political power and
ultimately ensuring that the masses played only a passive
role in national affairs (Mbeke, Ugangu, & Okello-Orlale,
2010, pp. 18-19).
The danger that meaningful development goals could be

overshadowed by selfish and overzealous implementation of the media
governance model is an abiding disincentive for trust in government
restraint. One must also be cautious in assuming the responsibility of
the media in the use of its freedom as the phone-hacking scandals in
the United Kingdom have shown. Offences by editors and senior
journalists and their media houses brought public outrage and
demands for stricter controls. The extent of state involvement in and
governance of the functions of Africas media is, therefore, a broad
though interesting subject and may not be exhaustively resolved easily.
It is useful, however, to explore the factors that are shaping media
regulatory bodies in Africa using the Kenyan example.
Obviously, the realities in many countries of Africa and even more
so in other countries of the global south differ from Kenya in a variety
of ways. We are aware of how difficult it is to apply universal
declarations (such as Article 19 of the United Nations Declaration on
Human Rights, adopted on 10 December, 1948), to the peculiarities of
different country contexts. For all the weight of Article 19 and the
broader UN declaration, even Western countries like the United States
144
have passed legislation making exceptions to the free flow and

freedom of expression mantras, most notably in response to hate
speech and the global terror threat (Biagi, 2011, p. 328). The situations
and prerogatives of African countries and their governments should
not automatically be viewed as dissimilar to the exceptional
circumstances cited by Western governments for proscribing the free
flow of ideas.
In 2003, rapporteurs for the protection of freedom of expression at
the United Nations, the Organization of American States, and the
Organization for Security and Cooporation in Europe, signed a
declaration which warned that it would be contrary to the interests of
free media expression to have regulatory bodies that are susceptible to
political or economic pressure. They stated that:
All public authorities which exercise formal regulatory

powers over the media should be protected against
interference, particularly of a political or economic nature,
including by an appointments process for members which
is transparent, allows for public input, and is not controlled
by any particular political party (Article 19, 2006, p. 4).
Article 19, the human rights lobby focusing on the protection of free
expression globally, was citing the rapporteurs declaration even as it
expressed its own reservations over a draft bill by the Kenyan
government in 2006 to introduce a media regulatory body which
would have government appointees alongside professional journalists,
lawyers, and other stakeholders. The bill, the forerunner of the wider
negotiated 2007 Media Act, was viewed by Article 19 at the time as
supplanting the self-regulatory mechanism which Kenyan journalists
had set up in 1995, but which, as Article 19 was to acknowledge, was
compromised by the failure of certain media outlets to act ethically
andthe failure of the current voluntary media council to tackle this
(Article 19, 2006, p. 3).
Of these self-regulatory methods, Article 19 noted in 2006 that
[l]essons can be learned from other countries that have successfully
established self-regulatory mechanisms. Self-regulatory systems exist in
various African countries, including Botswana, South Africa, and
Tanzania, and these systems should be studied with a view to
incorporating elements from them into the Kenyan system. Additionally,
the media that currently participate in the voluntary Media Council
145
should persuade those newspapers that are outside the mechanism to

join.
Some previous studies, much like Article 19s perspective above,
have favored self-regulatory media councils over statutory regulation
even where, as has become the case in Kenya, for example, the
statutory media council is operationally if not financially independent
of the government (Mbeke, Ugangu, & Okello-Orlale, 2010, p. 26).
However, the same authors claim that the need of government funding
media owners who were supposed to fund the MCK under the initial
permutations of the enabling Act have run back to the government for
finances (Mbeke, Ugangu, & Okello-Orlale, 2010, p. 37) places the
regulatory body under the leverage of government. They say that a
balance has to be struck between concerns over government
fundingand the councils need to enjoy a certain level of financial
security necessary to carry out its functions (Mbeke, Ugangu, &
Okello-Orlale, 2010, p. 26). Although the Kenyan government is willing
and able to resource the operations of the MCK (Mbeke, Ugangu, &
Okello-Orlale, 2010, p. 68), the authors suggest that donor funding
from non-governmental organizations should also be explored. They
argue that:
The perception that donor funding would encourage

donors to set the agenda for the media [is] not rational.
Donors also finance government activities, such as [the]
Communication for Development Programme that
creates a partnership between UNDP (the United
Nations Development Programme) and [the] Ministry of
Information and Communication (p.26).
Thus, the Kenyan governments financial support for the countrys

media regulatory body is seen as problematic, even if, as the same authors
concede, the MCK is a public organ[which] operates like an
independent enterprise with no statutory accountability (Mbeke,
Ugangu & Okello-Orlale, 2010, p. 26). This problematic impression has
seen some sections of the media reluctant to pay registration fees to the
council. To them, there is no parallel between the professional fees a
lawyer pays to the Law Society of Kenya, for instance, and the fees
required of media practitioners by the MCK. According to Mbeke,
Ugangu and Okello-Orlale, in the mind of its detractors, the MCK
should not be requiring fees of journalists because professional fees
146
are often paid to professional associations. Lawyers in Kenya pay fees to

the Law Society of Kenya and not to a quasi-government body.
But, as these same authors themselves aver, most journalists and
media organizations have accepted the accreditation fees, indicating
that the MCK, whatever the imperfections, is seen as a necessary
compromise to stave off direct, and possibly more stringent,
government regulation.
The continued tendencies to impose statutory regulation

Kruger called attention to this fact in his research into self-regulatory
councils (mostly in sub-Saharan Africa) when he observed that new
democracies have not yet seen a culture of tolerance taking root in the
public arena. The authorities may be tempted to reintroduce controls
(Kruger, 2009, p. 27). He cited the case of the formerly Stalinist nation
of Albania, still grappling with the legacy of EnverHoxhas 40-year
authoritarian regime (1945-1985), where according to an Article 19
report, the authorities over the years vacillated between over-and
under-regulation. Since the fall of communism, Albania has struggled
to strike the balance between unlimited freedom and over-regulation of
the print media (Kruger, 2009, p. 27).
Kruger alludes also to the South African context, where those who
framed the new democratic constitution under which Nelson Mandela and
the African National Congress assumed power in 1994 allowed a liberal
and largely unregulated media framework. Now, the ruling ANC is
showing signs of retreat from that commitment. As Kruger noted, In
South Africa, the self-regulatory system has also come under pressure,
with the ruling ANC threatening a statutory Media Appeals Tribunal
(Kruger, 2009, p. 7).
The advocacy for self-regulation was thus more than an argument: it
was a presence in the formative environment of the media legislation that
now obtains in Kenya. And, as will be seen in the literature, the
emergence and gradual reform of the media regulation process in
Zimbabwe was also carried out in the presence of advocacy for and
mechanisms of non-government media self-regulation (Chuma, 2011, p.
271).
As Chumas work notes, Zimbabwean journalists, contending with
increasing statutory encroachments on their practice, produced their
own blueprint Code of Conduct as far back as 2005 as a way forward
towards self-regulation. But the Zimbabwe government at that time
was sold to the idea of a statutory media council through which they
147
could impose regulation on the media and enforce an agreeable

domestic environment that would shut out the nascent opposition
forces that were threatening President Mugabes regime. While the
Zimbabwe government knew what it wanted to achieve and how to do
it, the media and civic society were not united in their conviction
regarding the consequences and were not ready to do what ought to be
done.
Compagnon describes, in Zimbabwe, a combination of state
authoritarianism and an ambivalent journalistic fraternity that gave the
government a free run to impose a dictatorial Media and Information
Commission (MIC) which was not only staffed by Mugabe loyalists,
but was recklessly biased, to the point of being successfully challenged
several times in Zimbabwes courts (Compagnon, 2011, pp. 131-132).
Compagnon describes the MIC as having deliberately excluded
representatives of the privately-owned media (yet having oversight of their
functions), enjoying discreet power to deny them accreditation, suspend
existing accreditation, or revoke it at any time with a wide range of
grounds to do so (Compagnon, 2011, p. 132). In a chapter of his book
documenting Zimbabwes wider social and political troubles,
Compagnon delves into what he calls the media battlefield: from
skirmishes to full-fledged war (Compagnon, 2011, p. 118) for the
most part of the last decade, citing the biased, unprofessional, and at
times unlawful conduct of the media commission which, he writes,
was highlighted by several court cases in 2005 and 2006, when its
prejudice against independent journalists and the publishers of the
Daily News was exposed (Compagnon, 2011, p. 132).
It was clear, as both Compagnon and Chuma point out, that the
forces for voluntary media self-regulation in Zimbabwe at the time
were weak, and that to some extent it allowed the government to push
through its media agenda with little debate (Compagnon, 2011, p. 131;
Chuma, 2011, p. 271). Like Compagnon, Chumas account reveals the
MIC to have been a very partisan body whose mandate appears to be
presiding over the demise of the private press.
The ambiguity of standards of non statutory intervention

Authors like Hoffman-Reim query the efficacy of regulation in an
era of increasing media diversification. Noting that the exchange
between the roles of communicator and recipient further highlight the
fact that traditional demarcations are now obsolete, he notes that the
diversification and segmentation of the communications order together
148
with the associated decentralization of decision-making processes have

made the task of statutory intervention much more difficult(Hoffman-
Reim, 1996, p. 360). Hoffman-Reims primary focus is on the legal
framework of broadcasting (p.3). His work examined six western
countries and how they were negotiating the changing technological
environment, rather than the challenges in a sub-Saharan context that
are being interrogated here. But Hoffman-Reims highlighting of the
political interface with changes in Western broadcasting continues to be
relevant to our discussion, to the extent that he admits that the debates
draw on a common interest in political support for regulation and the
degrees to which these ought to be enforced (pp. 3, 16). He provides an
insight into the way that the regulation of broadcasting in the United
Kingdom, repealed only in 1990, can be restrictive. The publicly
regulated supervisory broadcasting authority, the IBA, was entitled to
preventative programming control: The television companies were
obliged to have their program planning approved in advance by the
IBA. The radio companies could be similarly obliged.
The IBA, Hoffman-Reim added, advised the program companies
upon issues of program planning and was able to issue directives
regarding the telecasting or omission of certain programs and on the
adherence to or shifting of certain broadcast times[T]he companies
were furthermore obliged, upon request, to make available advanced
scripts and other broadcasting documents, as well as picture and sound
recordings, to provide the IBA with any desired information, and to
permit the inspection of their books[I]t was not uncommon for
programs to be changedor portions thereof subsequently edited out,
or for programs to be retracted as a result of objections. Intervention
occurred particularly often in the sensitive area of news reporting about
Northern Ireland (Hoffman-Reim, 1996, p. 81). The justification, often
questioned in Britain, was national security.
It does seem that the IBAs mandate in Britain until 1990,
enforceable by law on all broadcasters other than the publicly-owned
BBC, was much more stringent than what is known of media councils
in most of Africa today. Why, then, the intolerance for any form of
official media regulation in Africa? Even granted that the expanding
capacities of new media and their technologies forced upon Britain the
realization that market-driven, private media were here to stay, why
does there seem to be a pretense that official regulation was never used
in any of the Western liberal democracies?

149
Since Hoffman-Reims book, the technologies have advanced and

diversified even further than he might have appreciated at the time of
writing, but the complexities which these processes pose have not
diminished the political will for media regulation in many African
countries. On the contrary the complexities seem to enhance the
political inclinatikon to regulate.
Are there justifications of statutory regulation?

To some scholars, regulation seems unavoidable. What if the subject
of ones free expression would be harmful to a society? Or what if the
person expressing the view as a journalist is not competent to do so,
and would do society good by at least not expressing their ideas
(Obonyo & Nyamboga, 2011, p. 73)? The issue of regulation is
intertwined with that of free expressions and where free expression
may be deemed harmful or come from sources whose competence
may be deemed suspect. The media have an opinion on everything and
everyone. They have a watchdog role. But who watches the
watchdog? In drawing attention to journalism standards and the levels
of training offered, Obonyo and Nyamboga suggest that these may
have to be regulated. They write:
One can understand the dilemma of the legislators. If journalism

does require a certain degree of respectability then it cannot be an
open forum where everybody can do as they please. There must be
some sort of gate to separate journalists from others. (Obonyo &
Nyamboga, 2011).
These authors argue that, in Kenya, a correct balance between

statutory regulation and media self-restraint has been struck. In terms
of regulation it is probably [only] in Kenya that we have an
independent media council that is also statutory. Elsewhere in the
continent, the media council charged with the responsibility of settling
disputes in the industry is either fully statutory or lacking
independence as is the case of Rwanda, or is non-statutory as is the case
of Tanzania. Uganda is in a unique situation of having two media
councils, one statutory and the other non-statutory. Prior to the current
government, the media council in Kenya was non-statutory. However,
this status attracted certain challenges that made it difficult for the
council to operate. Too often this council was accused of lacking teeth
to stop evident abuses while, at the same time, the council had
150
challenges of raising sufficient resources to enable it to function both

independently and to its full potential.
To address some of the challenges, parliament enacted the Media
Act of 2007 that established the statutory council and gave it powers
anchored in law. At the same time parliament has since given the
council resources to enable it to fulfill its mandate. However, the
government does not sit in the council, does not instruct the council,
and does not influence it (Obonyo & Nyamboga, 2011, p. 5).
It is our conclusion, therefore, that studies of media and media
regulation suggest that it is better to avoid a position that proscribes
any statutory dispensation as necessarily harmful. Moralistic
distinctions between the statutory and non-statutory regulation may
not enhance understandings of the situations on the ground, which is
why this study seeks from its comparative analysis indicators of
efficiency, better practice, responsibility and accountability, that will
mutually benefit both state and media actors. To demand voluntary
self-regulation of African countries when Britain, with a reputation of
media freedom, found reason under certain circumstances to control
and even censor private broadcasting just over two decades ago calls
into question a universal condemnation of all statutory interventions.
The case of Kenya

But how did the Kenyan system of both statutory and non-statutory
regulation evolve? It emerged through a case of trial and error. That the
country has probably one of the liveliest media in the region is less
arguable. What, arguably, has come to the service of the Kenyan media
is the fact that it is rooted in the concept of free enterprise. When the
first Kenyan press was established at the turn of the century it was to
serve initially religious, and later, commercial interests. The newspapers
associated with the church, for example, The Taveta Chronicle, and even
later the Rock and Target initially had one core purpose: to socialize new
converts to Christianity. Obviously, the Rock and Target, later had a
much wider objective. Too often such a task was not considered
incompatible with the goals of the colonial administration. Whatever
regulation that could have been considered could as well have been
provided internally. The social objectives of the church were no
different than those of the state. Such objectives included the desire to
have the African population live in the segregated locations they had
been allocated by the administration.

151
But the subsequent papers that followed these early ones were
established to service purely commercial interests. Todays Standard,
when first established in 1902 by A.M. Jeevanjee was to serve as a
safeguard for his commercial interests then revolving around the
business of providing fresh supplies to the expatriate community at the
coast. The paper was to help put him in better stead than his
competition. It is not any great wonder that when the commercial
competition collapsed, Jeevanjee, who hardly spoke the English
language in which the paper was published, did not seem to have
much use for it and sold it to a pair of English hoteliers. Settlers
themselves, the new owners completely identified with the position of
the colonial administration and, as such, there was little conflict
between the press and the administration. As Ainslie (1966, p. 100)
observed:
The Standard was, and remained consistently for nearly

sixty years, the voice of settler demands for more
independence from Whitehall, for funds and soldiers to
deal with the natives, for aid in developing the land
Anyone who saw the East African Standard during the
years of Mau Mau rebellion might have been forgiven
for seeing it as an extremist settler mouthpiece. It
expressed all the White hysteria, all the angry settler
demands for more and more repressive action by the
Colonial Office, that made this period the ugliest in
Kenyas history.
When other media emerged, such as the Kenya Broadcasting

Corporation, these media were in the hands of the government and the
government could not appear to regulate against themselves.
But the situation did start to change as people with different driving motifs
joined the trade. For example, in 1923, maverick freedom fighter Harry
Thuku started publishing Tangazo, a medium no more than a collection
of fiery speeches by freedom fighters and their demand for land. The
publication survived only a couple of issues. But given the limited literate
population the colonial administration had little reason to worry about
the freedom ideals that would have informed media regulation.
Over the years three strands of newspaper publication emerged in
Kenya. In the forefront were media associated with the church. A second
type were media associated with social activists both of Asian and African
152
extraction. Within this category there was a wide range of media some
leaning toward radical action while others were more moderate. Even
Mwigwithania, then associated with Kenyas founding father MzeeJomo
Kenyatta, was considered for some as more of a cultural pamphlet than a
freedom fighters companion. Certain media associated with missionaries
could have fallen under this category but they would have been few. In
the third place were the media sympathetic to the colonial administration.
Kent (1972, p. 68) has suggested seven ways in which governments
seek to control the media: in order of severity of inhibition of press
freedom 1. Control of periodical distribution, 2.Control of periodical
content or format, 3. Control through official censorship, 4. Control of
newspaper personnel, 5. Control of official news, 6.Control of
publications existence, and 7. Control through punitive action. But for
any of these formats to apply certain variables have to be in place.
Among these variables are included socio-economic, technological,
cultural factors that would influence the degree of freedom that a
society would enjoy (Nixon, 1960, p. 13).
According to one perspective, as already observed above and as
Lamb (1987, p. 244) noted, the prime role of the media is to serve the
government, not to inform the people. The press is a propaganda
vehicle, used to manipulate and organize and control. Any questioning
voice is a potential threat and only the government is wise enough to
know what the people need to know.
For a long time, Kenya did not have an elaborate body of what could
be considered press law. As Ole Ronkei noted, the media in Kenya
operated under the mercy and goodwill of the countrys political
establishment, and in particular, the president, who [could] order a
paper banned anytime (1995, p. 41). What passed for Kenyas press
law was a generalized article 79 in the old constitution. It said:
Except with his own consent, no person shall be

hindered in the enjoyment of his freedom of expression,
that is to say, freedom to hold opinions without
interference, freedom to receive ideas and information
without interference, freedom to communicate ideas
without interference (whether the communication be to
the public generally or to any person or class of persons)
and freedom from interference with his correspondence.

153
However, besides this generalized section of the law there was a

sprinkling of legislation in the legal landscape that regulated the press.
Among these sections were the Official Secrets Act, Cap 187;
defamation Act, Cap 36; Preservation of Public Security Act, Cap 57;
Penal Code, Cap 63; Public Order Act, Cap 56; Books and Newspapers
Act, Cap 111; Films and Stage Plays Act, Cap 222; Copyright Act, Cap
130; Chiefs Authority Act, Cap 128; Police Act, Cap 84; and Armed
Forces Act, Cap 199).
The implementation of these restrictive laws was at the whim of the
government of the day. Under the presidency of Jomo Kenyatta, typical
of these whims was the observation of the then Attorney General
Charles Njonjo, who, responding to fears that the head of state was
indisposed, said that imagining the death of the president was a
treasonable offense. There is, however, no strong record of Kenyattas
reprimand to the press. If anything there were instances when he stood
with the press. For instance, when Idi Amin, the then leader of Uganda
banned Kenyan newspapers from circulating in Uganda, Kenyatta
objected. But the regime of President Daniel arap Moi was a completely
different kettle of fish, with constant repression of the media.
As has already been observed, the means by which media were
regulated in Kenya has varied over the years. Sometimes it took the
form of a parliamentary motion, for example, in 2001, when
parliament passed a Statutes Law (Miscellaneous Amendments Bill)
whose thrust required newspaper publishers to increase the bond
required to be deposited by any start-up newspaper from Ks 10,000 to
Ks 1,000,000. Any breach of of the legislation would incur a fine of up
to a million shillings or a jail term of up to three years. A subsequent
offence would raise the jail term to five years and would bar the
offender from ever again publishing in Kenya.
The courts were sometimes not up to the task of regulating the
media due to their lack of independence. While the judges enjoyed
security of tenure they were appointed by the executive and appeared
subservient to the executive. Studies by Transparency International
repeatedly found that the public perceived the judiciary to be among
the most corrupt institutions in the country. On the whole, however,
the state expected the media to do its bidding, and, whenever that did
not appear to be the case, the state used all manner of measures to
reign in on the media. For example, when the Weekly Review appeared
to be critical of the government, the government simply instructed
state agencies to stop advertising in the magazine. This starved the
154
magazine of funds and probably marked a turning point in its

journalism (Ochieng, 1992).
But as the political temperatures increased in the country so did the
relationships between the government and the media. Some, in
extreme cases, were banned; others were censored, while in some cases
the government raided media printing houses to physically disable
printing machines. The state jailed or detained journalists whose work
did not appeal to it and granted broadcast frequencies to applying
institutions and individuals in a rather opaque manner. By the early
1990s there was a general fear by journalists and the media in general,
leading to the movement by the media to seek means by which it
would regulate itself, and thus avoid the wrath of the state. The move
to self-regulate was thus driven by necessity and by fear.
However, self-regulation efforts soon encountered unique
challenges. Chief among these challenges was the lack of resources to
enable self-regulation to be effective. The staff of the independent
Media Council worked on a voluntary basis. Initially they had no
permanent abode from which to operate and they had no mechanism
through which to enforce their will on offending media houses. While
the industry agreed to fund the media through voluntary contributions
that were determined by the size of the media house only a few media
houses paid up. The other avenue of revenue the annual registration
fee for every journalist working in the country - met with stiff
challenges.
First, most journalists did not pay, arguing that the Ks 2000
registration fee was too high. And, secondly, the independent Council
simply did not have the capacity to collect the fees or to enforce its will
where journalists failed to pay up. Even in its rulings, when it preferred
a penalty against a media house, it was up to the media house to pay
the penalty and the Council did not have a way of enforcing its will.
The constant message became that the regulator had no teeth. It led
to a kind of stand off. The media would argue to be allowed to regulate
itself while the state would argue that the media had no capacity to
regulate itself. But further students of the media had serious
reservations regarding the impact of registration of journalists on the
freedom of expression. Scholars like Guy Berger argued that journalists
registration fees was an assault on freedom of speech as it limited the
right to only those who had the capacity to pay.
The 2002 elections in Kenya provided the country with an oppor-
tunity to revisit the issue afresh. It was obvious that self-regulation was
155

not as effective as it could have been for the reasons already

enumerated above. But in 2002 several former civil society activists
who identified with the plight of the press were elected to parliament
and into government. While, on the one hand, these advocates
believed in the importance of self regulation they also realized the
limitations facing the process. It is this challenge that led to the journey
to the hybrid process in Kenya. To address the challenge of the
capacity of the Council the government provided a legal environment
that made it possible for the Council to enforce its rulings. The law
passed in 2007 provided the Council with legal recognition, a mandate,
and a mechanism to enforce its will. However, the Council still faced
the challenge of funding. In the debate and public discussions leading
to the setting up of the Council there were strong representations from
civil society organizations and from the media itself that it did not want
to receive funding from the government because such funding would
compromise its mandate the proverbial whoever pays the piper calls
the tune mantra.
The thinking behind the call not to receive funding from the state
was informed by the fear that the state would use the funding rope to
gag and control the Council. The proponents of this school argued that
the Council should be funded through the contributions of the media
itself and through donor money. But parliament, while passing the law,
was equally concerned about the source of revenue for the Council and
prohibited it from receiving funding from any other source other than
from the media houses themselves and through self-funding.
Parliaments argument was that if the Council did not want money
from the state then it could generate funding from its activities such as
penalties levied against offending media houses, from annual monthly
remittances from the media houses, and from annual registration fees
on journalists. But before long it was obvious that the self funding
mechanism was not working, and the Council would not be able to
execute its mandate.
Two years after coming into effect parliament amended the law and
started funding the Council. The fears that the government could use
the funding option to control the media were probably overstated. This
is because the government does not have real control over the Council.
It does not sit on the Councils board and accountability remains to
Parliament through the Parliamentary Select Committee rather than to
a government office. The advantage of this arrangement is that the
select committee which comprises members from both sides of the
156
aisle makes it difficult for the Select Committee to be dominated by

one opinion. In terms of the composition of the Board the closest that
government is to being represented is through the appointment of the
Director of Information, who is in charge of the national Kenya News
Agency to sit on the Board. But this membership is just one out of the
13 members of the Board that includes three representatives from the
Media Owners Association, two from private and public universities
respectively, and from the Kenya Union of Journalists and one each
from the Kenya Institute of Mass Communication a government
training institution, from the Kenya Correspondents Association, from
the Law Society of Kenya, from the editors guild and from Public
Relations Society of Kenya.
The irony is that the fear of government control is overstated
compared to the fear of control by media owners. While there are three
representatives from the Media Owners Association, it is conceivable
that the representatives of the Editors Guild, of the Correspondents
Association and even of the Kenya Union of Journalists, all who interact
rather closely with the Media Owners Association members at one time
or the other, could be subservient to the interests of the Association
Members. Further, given the nature of the composition of the Kenya
Union of Journalists and Kenya Correspondents Association, again it is
conceivable that the articulation of journalists and correspondents
concerns in these bodies could be a matter of conjecture.
However, Kenyas new constitution does address these fears
somewhat. Article 34 does require parliament to put in place, within
three years of the promulgation of the constitution, a media regulator
that is both independent of government and commercial interests. This
would appear to make it difficult for anybody associated with both the
government and with the media owners to sit on the board. The
process of making this law a reality is ongoing. One would envisage a
situation where the industry would turn to the Public Service
Commission to recruit members of the Council from competent
individuals who are not representatives of the government or the
commercial interests. This would make the Board of the Council
independent from both government and commercial interests, and still
receive resources from the Treasury and be accountable through the
Parliaments select committee. And the fact that the decisions of the
Council have force of law makes it easy for it to bite.

157
A brief conclusion is that the experiment taking place in Kenya

means that the choice is not primarily between whether to self regulate
or to be regulated by the government. There is a third way.
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Nairobi: International Commission of Jurists.
Ochieng, P. (1992). I accuse the press: An insiders view of the media
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Ole Ronkei, M. (1995). Emerging communication strategies in the
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Zaffiro, J. (2002). Media and democracy in Zimbabwe, 1931-2002.
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160
Media self-regulation in young
democracies: Just how effective are
voluntary media councils
By Ayub Rioba
Abstract
While much is written about the role of media in mature democracies the present
article attempts to evaluate the mechanisms of freedom and responsibility and
especially the role of non statutory media councils in young democracies of Africa,
taking Tanzania as a case study. This study found that with good management,
broad support from the media community as well as government and civic leaders,
and very strong support by donor agencies a media council can correct journalistic
abuses, raise standards, support a series of organizations such as an editors forum,
media owners associations and journalists associations. Media professionals in
this study were in favor a non-statutory council backed by the strong educational
and advocacy activities of the council.
Key words: media and democracy, media accountability, self regulation,

media council
Introduction:
In the early 1990s, Tanzania like the rest of Africa embarked on
political reforms to institute liberal democracy (Shivji, 1994). Among
other forms of liberalization came the opening to a free press deemed
integral to pluralistic democracy (Kilimwiko, 2009). The post-colonial
era with its developmentalist agenda had faced strenuous challenges
that made political and economic reforms inevitable (Amani et al, 2006;
Malyamkono et al 2006). The demands for a free press in the new
paradigm meant a radical departure from the colonial and post-colonial
political culture which restricted press freedom in the name of national
unity and centralized state planning (Konde, 1984). National policy
moved towards a freer, diverse and self-regulated media regime (see
Sturmer & Rioba, 2000).
Ayubu Rioba (ayubrioba@hotmail.com), a Lecturer in the School of Journalism and Mass
Communication at the University of Dar es Salaam, has recently finished his PhD in mass
communication at the University of Tampere, Finland. His recent publications include The
Role of Media in Africas Multiparty Democracy in A. Magnuson, 2010.

161
/
Ayub Rioba
The major premise in the call for a free press was that since African
countries had adopted Western liberal democracy with its free
market fundamentals as a panacea to economic failures then it
followed automatically that the media sector also had to adopt and
reflect that form of democracy (Bourgault, 1995; Eribo, & Jong-Ebort,
1997; Mwangi, 2010; Mason, 2001; Joseph,1997). This move was
supported by the argument that a free media is both desirable and
necessary in a democracy for holding the government accountable to
citizens; for promoting diversity of views and for creating an informed
citizenry through free flow of information and unfettered debate (see
Dahlgren, 2009; Gurevitch et al,1995; Curran, 2002; White, 2008:
Killian, 2010, 2011; Christians et al, 2009). It was this conceptual
position that inspired media activists, policy advocacy groups and civil
society in the early 1990s to demand press freedom and self-regulation
as a way of enhancing the mass medias role in the democratization
process (Mafeje, 2002).
Consequently, in 1995 Tanzanian media practitioners, as well as
supporters from civil society, established a voluntary, independent and
non-statutory council to guide the self-regulation of mass media as an
integral part of liberal democracy. The Media Council of Tanzania
(MCT) was charged with the task of enhancing media accountability,
carrying out arbitration on complaints and promoting professionalism
in the sector.
However, critical reflection on the seemingly well intended
campaign for media freedom reveals that while campaigners have
demanded media freedom and independence from governments,
they have also tended to overlook or ignore some underlying
ambiguities accompanying liberal democracy concepts. Apart from the
anomaly inherent in uncritical adoption of Western concepts in Africas
radically different circumstances in terms of history, culture, political
organization, economic framework, there is also the question of the
negative influences of free markets on media freedom
andindependence (see, for example, Ronning, 1994; McChesney,
1999; Curran, 2002; Christians et al, 2009).
Since the MCT was established in 1995 many countries on the
continent and elsewhere have sent pilgrims to Tanzania to learn from
MCTs seeming success story in spearheading self-regulation of mass
media. But in which ways and to what extent has the MCT in fact
succeeded in mounting self-regulation in Tanzanias young democracy.
For many the MCT remains like a parcel that has not been unpacked.
162
Media self regulation in young democracies
Although self-regulation, promoted by independent media councils,

is deemed a better alternative than government control through
legislation, there is still lack of clarity about how effective it is, or can
be, in the context of young democracies such as those in Africa
(Bussiek, 2008; Dennis, 1995; Da Silva & Paulino, 2007). This article
seeks to interrogate the effectiveness of the voluntary, independent and
non-statutory Media Council of Tanzania (MCT) in developing self-
regulation in Tanzanias struggling democracy.
In principle, self-regulation entails all the mechanisms employed by
media practitioners themselves in the newsrooms and outside for
ensuring accountability. It involves a hierarchy of rules, processes,
procedures and practices all administered by professionals themselves
and appraised by the audiences in terms of readership, listenership or
viewership (see Bertrand, 2002; Gadzekpo, 2010; Rioba, 2012).
From the outset, it is important to point out that self-regulation is
only one way and, at best, only one part of the process of regulating the
media services of a country. Nordenstreng (2010, p. 428), for example,
distinguishes four categories under which media are regulated:
Law enacted by Parliament and other state bodies and executed by
courts;
Market based on private property, commercial advertising and consumer
choice;
Public thorough citizens associations and public opinion;
Media themselves through journalists and managers;
All the four may and do have a role to play in regulating mass
media in society. But what distinguishes advanced democracies from
young democratising countries like Tanzania is the extent to which the
government exercises control on media practice. For example, in liberal as
well as other advanced democracies, media ownership is deemed as
ownership of any other business and therefore that the regulation of
media behavior is best left to the invisible hand of the market.
However, apart from the criticism about negative influences of the free
markets on media practice, scholars such as Nordenstreng (2010) are
critical of self-regulation seeing it as the weakest form of the four
because of professionals inclination towards more autonomy, which
leads to what he terms as fortress journalism. The autonomy of mass
media, arguably, can best be understood from the perspective of
serving wider societal interests not narrow interests of the media as
well as advertisers which is increasingly becoming common.

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Ayub Rioba
Many African countries, including Tanzania, are still trapped in the

early stages of democratization during which the old paradigm of state
control is in constant friction with the new self regulating freedom and
where the new does not necessarily fit in (see Hynes, 2001; Matumaini,
2011; Rioba, 2012). While the legacy of one-partyism is still very much
present in Tanzania (Baregu, 2000), the new imposed culture of
liberalism, multipartyism and free markets appears to be ill-equipped
to help media practitioners self-regulate themselves.
Just how effective is media self-regulation

The central thesis of this study is that since theories on the role of
media in liberal democracy see government regulation as too prone to
limit media freedom, media self regulation emerges as the most work-
able alternative regulatory mechanism in Africa (Blake, 1997; Berger,
2007). But theories of the role of media in democracy, including
theories of self-regulation, have mainly focused on developed countries
with more mature democracies while there is very little research and
commentary on the role of media regulation in young democracies
(Berger, 2002; White, 2008). The demand for less government involve-
ment in controlling media behavior appears to be increasuing in
developing countries, but the dilemma of the negative influence of free
markets on mass media has not been addressed adequately {Dahlgren,
2009). Although theoretically free markets are said to guarantee media
diversity and independence experiences in advanced liberal demo-
cracies indicate that trends towards merger, acquisition, and conglo-
meration of corporate media is killing both diversity and independence
(see for example, McChesney, 1999; Chomsky, 1995; Baker, 2001;
Curran, 2002; Christians et al, 2009). More airtime and space in media
is increasingly dedicated to entertainment and promotion of consum-
erism while little time is spared for public affairs and engagement of
citizens on governance issues (Curran, 2002). It is against this back-
ground that a scholarly need arises to investigate the effectiveness of
independent media councils as mechanisms for spearheading self-
regulation of media in young liberal democracies.
This article is basically an extension of my PhD research in which I

sought to understand the effectiveness of a voluntary media council in
enhancing media freedom and accountability in a young democracy.
The article specifically aims at contributing to knowledge on this topic
through views of journalists and influential persons as well as scrutiny
164
of the actual workings of the MCT for a selected period of ten years
(1997-2006). The article further focuses on two research questions
which addressed directly the issue of the effectiveness of media self-
regulation2: 1. What are the views of journalists and other stakeholders
about self-regulation of media in Tanzania? What is their assessment of
the role the MCT has played in introdeucing self-regulation in the last
15 years? 2. How effective has the MCT been in administering self-
regulation of media in Tanzania? What lessons can be drawn from its
arbitration process in the first ten years of its existence?
Research methods
Four key methods were employed in generating data in this research.
The first one was a questionnaire administered to a sample of 221
journalists across the whole country in selected press clubs and in
newsrooms which provide a meaningful representative sample of
Tanzanian journalists. The selection of sample media/press clubs,
number of journalists, and number of questionnaires is presented
below:

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Ayub Rioba
The second method was focus group discussions with two main
groups, one comprising of 12 post-graduate journalism students at St.
Augustine University of Tanzania (SAUT) and anothere with 26 editors
at an Editors Forum (EF). While the first one was appropriate in terms
of the number of participants, the one with Editors Forum was a little
over twice the maximum number. The problem with such a large
number is that within the limited time of the interview some
participants do not get a chance to speak and even those who
participate tend to rush to make their point so as to give a chance to
other speakers. Nevertheless, since it was almost impossible to divide
the editors into smaller groups for a focus group discussion, the only
practical option was to request them to slot my session in one of their
meetings to which they offered two hours.
Both the post-graduate student and editors focus group sessions
were conducted in Dar es Salaam on different occasions. While the
focus group with SAUT lasted for two hours and eleven minutes the
one with editors lasted for one hour and twenty minutes. In both cases
a neutral and perceptive moderator was identified to moderate the
sessions while the researcher only provided guidance in the specific
questions to be addressed. The focus group discussions provided
166
valuable input to my understanding of the context, intensity of ethical

problems, challenges and prospects of self-regulatio
The third method was intensive interviews conducted with 32
influential individuals identified by convenience of availability: they
were from government, political parties, universities, civil society and
among journalists themselves. The individuals were selected on the
basis of their roles in society and especially their involvement with
issues that relate to media activities.
There were two major objectives in approaching these selected
groups for in-depth interviews. The first one was to learn how these
groups - which are consumers of media products as well as
beneficiaries of the facilitative role of media view the role of media
and self-regulation in the context of Tanzanias democracy. The second
objective was to compare the groups views with those of journalists in
the focus group discussions as well as in the survey.
S/N Category Interviewee
However, the fourth and main approach was to study the MCTs
archives for analysis of complaints. This approach aimed at discovering,
collating, linking and analysing data at the MCT which relates to its
arbitration process. This enabled me to study the MCTs mandate,
procedures and handling of complaints, the number of cases each year
the verdicts reached, the profiles of complainants, types of complaints,
types of media brought before the MCT, costs involved in resolving
cases, duration of cases and explanations for unethical practices that
result in complaints.

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Ayub Rioba
Although the MCT has also been involved in a number of other

activities including the training of journalists in media ethics and
investigative journalism, organizing media symposia and dialogue
among journalists, providing annual prizes for best journalists,
supporting press clubs and the Editors Forum, this part of the study
focused on the details of arbitration, a process that engages the public
directly in the exercise of media self-regulation and accountability. As
the MCT publication on conciliation cases (1997-2006) has put it:
Among the activities of the Media Council of Tanzania (MCT), arbitration
is the most visible, attracting interest of people from all walks of life (MCT,
2010, p. 5). However, the MCTs 2010 report published to mark 10
years of promoting media ethics and accountability, contains just a
fraction of all the cases in the period, and lacks analysis that explains
the nature of ethical problems, trends of complaints and effectiveness
of arbitration process as a significant aspect of self-regulation. This
paper intends to provide that analysis.
Particularly relevant in the archives of the MCT in Dar es Salaam
were the arbitration cases for selected periods. These cases revealed
much about the functioning and effectiveness of the Council. Files of
cases ranged from the year 1997 to 2010, and on average there were 10
cases for each year. It should be noted that although some files were
not readily available at the MCT archives, the majority that were
present provided valuable information from which to draw both
quantitative and qualitative analysis. Since no research had been
conducted to systematically analyse all this raw case data since 1995, it
was necessary to go through all the files in the archive to retrieve
information page after page. The objectives of studying MCT cases
were to sort out data concerning the way the MCT handled complaints
as well as its effectiveness as a self-regulation mechanism. The most
revealing aspects of the complaints regarding violation of journalistic
responsibility are the following:
procedures for filing a case
average number of cases per year
categories of complainants (politicians, business persons, ordinary
people, etc)
categories of complaints (ethical provisions that are breached most)
average time it takes for a filed case to be decided
The average costs of cases to individual complainants and the remedy
offered
168
Threshold for adherence to Ethics Committees decisions (% of

compliance)
Procedures for reaching decisions were made the way they were
made.
Background of the MCT

The independent, non-statutory and voluntary Media Council of
Tanzania (MCT) was established on June 30, 1995 at a conference of
journalists and stakeholders held at the Korean Cultural Center in Dar
es Salaam. The MCT was to start operations effectively on May 22,
1997 after official registration and upon acquiring funding from the
Swedish Embassy in Tanzania. This funding enabled it to form a
secretariat and set up an office in Dar es Salaam (Rioba, 2009, p. 110).
Since then, the MCT has conducted arbitration of complaints; trained
journalists in ethics and investigative journalism; organized workshops
and symposia to discuss ethics; prepared codes of ethics for journalists
and produced a number of publications addressing issues of quality
journalism and accountability.
The MCT also publishes a journal (or, better, a trade magazine),
Scribes, with articles on the professional activities of journalists and
numerous other practical booklets on professional acitivities of
journalists and broadcasters.The MCT has also promoted issues of
editorial independence through such initiatives as supporting the
establishment of the Editors Forum and through organizing
encounters for professionals to discuss their professional standards. In
2010 and 2011 the MCT promoted a study group which brought out
the Dar es Salaam Declaration on Editorial Freedom and Responsibility
and then carried out training sessions on this declaration for the
university students and press clubs. The MCT also gives annual
awards to different categories of outstanding journalists, editors and
broadcasters. The MCT regularly has press releases on major media
events in Tanzania. All this activity gains the MCT considerable
publicity and coverage in the media.
On average, recent annual budgets for the MCT stand at 1 million
US Dollars of which less than 10 % comes from local media
organizations and other local stakeholders. Most of the budget is
covered by donors led by Sweden. Such budgetary implications have
often raised issues of sustainability as well as independence of the MCT
in spearheading self-regulation. In terms of arbitration, between 1997
and 2006 a period under this study - the MCT handled over 130
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Ayub Rioba
cases, an average of 13 cases per year. Complainants have come from

politicians, professionals, business persons, ordinary citizens,
institutions and the government.
Almost all media houses are MCT members and up to 98% of
arbitration decisions are adhered to by parties to disputes. Still,
underneath such impressive statistics are experiences of hassles that
complainants have to go through especially with uncooperative editors
in newsrooms before their complaints are settled by the Ethics
Committee. Whereas the MCT constitution requires the arbitration of
cases to be finalized within three months, some cases take over a year
to conclude because of, among other factors, procedural hurdles and
other unforeseen circumstances.
Findings: How has the MCT contributed to media accountability

The issue of media accountability continues to be contentious in
Tanzania. Whereas respondents in the three approaches of this research
argue for enhanced, and guaranteed, media freedom in order to sustain
democracy, they still express concern over irresponsible media practice.
Most respondents in the survey, focus groups and in-depth
interviews maintain that the leading ethical transgressions in Tanzania
include, but are not limited to, the following: telling lies or publishing
false allegations; defaming individuals; taking bribes to suppress or
promote information; publishing sensational as well as biased content
either to maximize sales or serve narrow interests of owners, politicians
and businesspersons; use of media as weapons for fighting political or
business wars; plagiarizing content as well as failure to respect the right
of reply. Most of these violations are also reflected in cases that were
filed in the MCT in the period of this research.
What is interesting to note is how survey respondents responded to
the question about what they considered to be their main sources of
ethical convictions. Although responses in this category do not show
the order of importance it is worth mentioning that the majority, 30%
of responses, mentioned personal convictions followed by 24% of
responses which cited parents and societal values as sources of ethical
convictions. Newsroom codes of ethics came third with about 18 %
of responses followed by training in journalism ethics also with about
17% of responses. Religion and the fear of God came last with only
8% of responses.
These results contrast significantly with the results of a study by
Rioba (2009) which found that personal convictions had the least
170
responses while training in journalism ethics, education, parents

and religion came top in a corresponding order (Rioba, 2009, p. 96).
One of the explanations for this differencd is that as a society drifts
towards liberal political and economic policies individuals increasingly
turn to the self for a sense of moral direction as opposed to the sense
of community which was very dominant during the socialist years or
prior to colonialism (see, for example, Nyamnjoh, 2005). In other
words democratic reforms that have been taking place in Africa, and
Tanzania in particular, appear to be reinforcing individualistic values of
the liberal strand of democracy which are apparently replacing the
deep rooted communal ways of life. What is still not clear at this
juncture is whether this shift towards liberal values particularly in
urban areas is likely to be an incentive, or otherwise, to the
effectiveness of self-regulation.
Knowledge of self-regulation
It was more obvious that in the focus groups and in-depth
interviews, respondents were more aware of self-regulation of media
and the role the MCT had played in encouraging media accountability
in the country. The majority in this category could also link the concept
of self-regulation to liberal multiparty democracy which is being
implemented in the country since 1992. Furthermore, a considerable
number of respondents in these two categories espoused the criticism
about the negative influences of the corporate world or imperialism
interests on the workings of the media. Furthermore, it was in these
two categories that views emerged to support the voluntary and
independent MCT in promoting self-regulation instead of endorsing
the governments exercise of control over media practice. It was mainly
from these two research groups that more concrete recommendations
emerged on how the MCT could be strengthened to enhance its role in
developing self-regulation of mass media in the country.
When those interviewed were asked whether they understood the
concept of self-regulation, the majority of respondents (about 71%) in
the survey answered in the affirmative while about 11% said no. About
18% of respondents did not respond to the question. The majority of
those who did not respond to the question were freelancers and
correspondents from the press clubs in the regions. Most of the
respondents who answered yes to this question were those with
diploma level or above qualifications in journalism or mass
communication or with work experience of more than five years. The
171
Ayub Rioba
majority of those who did not respond were correspondents from press
clubs in the regions, most of whom are less educated (i.e., very few of
the respondents in this category had a college diploma). Clearly the
concept of self-regulation in Tanzania today is beginning to be
associated with the MCT prior to which it only meant newsroom
mechanisms such as the postmortem, editorial meetings or editorial
sanctions against unethical journalists.
Has the MCT been effective? Survey results

On the question of whether the MCT had enhanced efficiency of
mass media performance through self-regulation some 69% of
respondents were of the view that it had while 18% said no. About 2%
of the respondents said they were not sure. There was no response
from 10% of the respondents, almost all of whom were upcountry
correspondents with lower educational levels (i.e. Secondary school
education and below). About 64% agreed that self-regulation had been
an incentive for journalists to adhere to ethics while 18% thought
otherwise. About 16% of the respondents did not respond to the
question. Furthermore, 70% of respondents agreed that self-regulation
had reduced costs of administering cases and complaints while 13%
said no. About 15% of respondents had no response while about 4% of
respondents said they did not know.
On the question whether self-regulation had increased public trust
in the journalism profession the figures dropped significantly. About
54% of respondents agreed with the proposition while 27% disagreed.
There were 15% of respondents who did not respond while 4% said
they were not sure. The same pattern repeated itself on the question
whether self-regulation had enhanced accountability on the part of
journalists. About 58% of respondents replied in the affirmative while a
fifth said no. About 19% of respondents did not respond to the
question and 3% said they were not sure.
Lastly, on the question of whether self-regulation had helped
promote press freedom, 64% agreed with the proposition while 18%
disagreed. About 16% did not respond to the question while 2% said
they were not sure. It is worth noting that about 70% of respondents
were confident that the MCTs self-regulation had increased efficiency
in journalistic performance and had also reduced costs in handling
complaints but the number dropped to 56% on the issues of increased
accountability as well as enhanced public trust. This is understandable
from the fact that while the issue of enhanced efficiency in journalistic
172
performance is more related to the training role of the MCT the issue of
public trust and increased accountability was still a major challenge
owing to unethical behavior of some media outlets and journalists.
Focus groups and in-depth interviews

With the focus groups and especially the in-depth interviews, the
main argument was that self-regulation was a better mechanism for
media accountability in a democracy despite inherent threats
emanating from political and corporate interests. Respondents further
argued that the problem with entrusting media accountability to
government agency was its well known tendency to control the
information sector. This argument is aptly elaborated by Ansah (1991)
in his analysis of three major crises facing media in Africas
democratization. According to Ansah, African media faces the crises of
power, ownership and resources. On the crisis of power, Ansah posits
that weak states are always suspicious of media because they see them
as agents of dissent (see also Blake, 1997; Kasoma, 2000; Hyden et al.,
2002; Gadzekpo, 2010). In this context, Ansah argues that weak states
seek to control media through censorship, economic rewards for media
toeing the line as well as reprisals to those that maintain a critical
stance. He further argues that since most weak states tend to suffer
from a legitimacy problem, they end up seeking control of media to
ensure coverage that glorifies and promotes their image to the public.
The second major argument from respondents in the focus groups
and in-depth interviews was that since governments in a democracy
were expected to be accountable to citizens the media were supposed
to enjoy a degree of freedom which could allow them to watch the
governments on citizens behalf (see Nordenstreng 2000, p. 75). It was
in this context that most respondents credited the role the MCT had
played since 1997 claiming that it had minimized government
interference with the workings of mass media despite the existence of
the old and strict media laws. Respondents maintained that the MCT
had gained credibility and recognition by both the public and the
government as a legitimate mechanism to develop self-regulation
capacity of mass media in the country. They cited the diversity of
complainants to MCT, who range from top government leaders to
ordinary citizens as evidence to this argument.
Furthermore, respondents were also of the view that the MCT had
helped reduce the economic threat to media through arbitration of
cases without hefty fines imposed by courts of law. Furthermore,
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Ayub Rioba
respondents also saw self-regulation, through MCT arbitration, as a

quicker mechanism to resolve disputes than in courts of law where
cases took years to resolve.
On the other hand, some respondents were of the view that self-
regulation under the MCT appeared powerless in an environment in
which the major media houses were owned by the corporate as well as
political moguls who primarily sought to pursue business and political
interests often at the expense of societal welfare and democracy.
Secondly, they faulted the MCTs self-regulation mechanism for lacking
enforcement powers to punish media outlets or journalists who
deliberately violated professional ethics. In his study Matumaini (2011)
found that 55% of his respondents stated that media houses and
individual journalists tended not to respect codes of ethics, an
argument that is also raised by Mfumbusa (2006).
Thirdly, respondents also thought the idea of the MCT shaming
editors and media outlets through its arbitration process was
problematic because the same media houses were the main
stakeholders who also financed the MCT. Fourthly, MCT was seen as
relying too much on donor financial support for its activities which,
they argued, eroded its independence as well as legitimacy among its
key stakeholders. Since its establishment the MCT has continued to
rely heavily on donors for financing its annual budgets. The MCT has a
budget of USD 1 million annually which is largely covered by donor
countries, led by Sweden, Denmark, Norway and Switzerland and
UNESCO. The media fraternity in Tanzania contributes about 8 to 11%
of this budget (MCT, 2011).
What should be done to strengthen ethical behavior?

The survey also sought to know from journalists what was required
to ensure that mass media adhered to journalism ethics as a way of
enhancing their accountability. Interestingly respondents provided the
same responses as in the 2009 study, giving journalism training first
priority, followed by reforms of media and improved salaries (Rioba,
2009, p. 98). In the views of Tanzanian journalists the issue of
continuous training, particularly in journalism ethics and the role of
media, appears to be central in enhancing media accountability.
Nevertheless, the changed circumstances under the liberal
democratic dispensation and free market economy portend a serious
challenge that demands not only more training but also constant
dialogue and study among professionals on issues of media roles and
174
accountability. Furthermore, there are other conceptual challenges in

journalism practice that have to be understood in the context of media
self-regulation. For example there exists the dilemma of newsroom
values which subject journalists to Western notions of journalism on
one hand and African values on the other and affect the way media
people respond to the idea and practice of self-regulation.
On the one hand, journalists are busy responding to neoliberal
dictates while on the other, they are confronted by other situational
factors that tend to complicate their ethical alignment. Mfumbusa
refers to Gans (1979) who identified several values that are usually
embedded in the news, one of which was individualism. Mfumbusa
observes that according to Gans the ideal individual struggles against
adversity and overcomes more powerful forces in society and nature,
which, Mfumbusa adds, contrasts sharply from his findings in
Tanzanian newsrooms he studied in 2003:
Unlike in the United States where Gans research was done

where self-made men and women are attractive (or admired),
as do people who overcome poverty or bureaucracy, the
tendency among the interviewees was to tolerate
individuals who beat the system earning easy success and
wealth. Most interviewees do not particularly frown upon
dubious success obtained through cheating (2003, p. 93).
Nonetheless, newsroom practices in Tanzania, as in many

democratizing countries, suggest that self-regulation per se may not be
effective if professionalism, the moral imperative to excel, better
salaries and working conditions, are not in order or if journalists are
subjected to patronizing tendencies of politicians and the business
sector (Mfumbusa, 2006).
Furthermore, as Kilimwiko (2009) and Mfumbusa (2006) have
noted, media ownership interests characterized by the dominance of
the corporate world tend to align with government interests in ways
that do not necessarily serve the general welfare of citizens or society at
large. This trend constitutes a challenge to not only press freedom but
also to self-regulation of media in general. A case in point is the trend
indicating that during general elections major media houses tend to
favor the ruling party at the expense of other opposition parties and
candidates (see MISA Election Media Monitoring Project 2000, 2005;
Synovate 2010 Media Monitoring Reports). Again a significant number
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Ayub Rioba
of responses proposed legal reforms, constitutional guarantee of press

freedom and protection of journalists.
This suggestion echoes what the presidential Nyalali Commission
recommended in 1991 about a review or repeal of 40 bad laws,
including media laws, which were a snag to democratic dispensation.
Although a process has been in place since 2001 to review information
and broadcasting policies to guide the new legislation in media, its slow
pace raises doubts as to whether the government is willing to carry out
further reforms in the media and information sector. So far, media
stakeholders, including the MCT and MISA, have handed over their
recommendations for new legislation to the government for
consideration in the proposed Freedom of Information Bill as well as
the Media Services Bill. The main objective of these proposals is to
enact media laws which meet provisions in AU Charters which reflect
media requirements in a democratic country. Nevertheless, 8% of the
responses suggested that the role of the MCT, Editors Forum, and
professional associations (including a trade union) should be
strengthened while another 8% suggested national debate and dialogue
on the role of media in enhancing democracy. A few, however,
suggested that access to newspapers and other media outlets be
extended to rural populations as well if the media is to play an
important role in democracy.
Almost all respondents in focus groups and in-depth interviews
admitted that the MCT had been very instrumental in promoting the
idea of self-regulation of media in the country despite the fact that it
lacked powers to enforce its arbitration decisions. However, several
interviewees, particularly those who had worked closely with the MCT
believed that the self-regulatory body did not need teeth. One
argument put forth was that invitation of the government to provide
teeth to a self-regulatory body would prompt the government to think
that self-regulation had failed. Creating such impression, they argued,
would encourage the government to intervene by instituting more
controls on media.
The second argument was that the MCT could not build its
legitimacy on the basis of self-regulation only to turn and claim teeth
from the very government whose proposal for a statutory council it
rejected in the first place. The third argument was that the results, or
success, of self-regulation could not be seen overnight and that there
was progress being made in the current efforts by the MCT and other
stakeholders to improve and sustain self-regulation. Interviewees
176
argued further that the sanctions imposed through self-regulation were

a sufficient punishment to media that breached ethics because no
serious editor was ready to face public admonition, very often at the
expense of his/her media credibility.
As noted in the survey, focus groups discussions and expert
interviews, self-regulation is regarded highly as a desirable mechanism
to promote media freedoms and accountability. However, a
considerable number of respondents see MCT as a toothless
organization which is incapable of disciplining rogue media and
irresponsible journalists. This dual image of the MCT and self-
regulation comes as the backdrop of another dilemma facing the mass
media in a liberal democratic environment; an environment in which
the threat to press freedom does not necessarily come from the
government as it is traditionally known, but also from the negative
influences of free markets on mass media (see Ronning, 1994;
McChesney, 1999; Curran, 2002; Mfumbusa, 2008; Christians et al.,
2009).
Analysis of MCT arbitration

In the period under study (1997-2006) I was able to access a total of
136 cases that were filed and heard by the Ethics Committee. It was not
practically possible to find out how many cases had been rejected by
either the secretariat or the Ethics Committee for lack of merit before
they could be heard. The year 2001 had the highest number of cases
(32) while 1997, 1999 and 2006 had the least number of cases (5). On
the whole, in all the cases that were heard by the Ethics Committee in
the ten years within this study, the majority (over 80%) of the decisions
faulted the media for being unethical. In the remaining cases (less than
20%), the media were either exonerated or the cases were dismissed for
lack of merit. Some of the reasons that prompted dismissal of cases
included situations in which the complainant had brought a complaint
before the MCT about a case that was pending in a court of law.
The second reason for dismissal of cases was when the primary
objective of the complainant was monetary compensation and nothing
less. There were also cases that were closed (not rejected) because the
editors had refused to cooperate. In such cases the Ethics Committee
asked the complainant to seek a remedy somewhere else. The majority
of complaints (92%) were against newspapers, while about 6% were
against radio and the remaining about other types of concerns. For
example there were cases in which a journalist complained about a
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fellow journalist on an issue that was totally unrelated to his/her media

organization.
Profiles of complainants
In the ten years under study (1997-2006) ordinary citizens were the
leading complainants scoring 22% followed by politicians who
constituted 21%. Civil servants and professionals constituted 14%
followed closely by journalists with 13%and businesspersons or
companies constituting 11%. Religious leaders and organizations tied
with showbiz celebrities with 7% each while organizations, such as
educational institutions, held the last position with 5% The fact that
ordinary citizens were the leading complainants in the period under
study, it can be argued, is indicative of growing trust in the self-
regulatory mechanism. Most ordinary people hardly file cases for
defamation or other violations by media in Courts of Law and when
they do, they do not ask for billions of Shillings as is normally the case
with politicians and businesspersons. However, a closer look again into
the origins of those who filed complaints at the MCT in the period
under study, two thirds came from Dar es Salaam and its neighbouring
districts. In other words the majority of citizens in Tanzania could not
access the services of MCT for a number of reasons. Firstly, access to
media by most rural Tanzanians is limited. A study conducted by the
government in 2007 among citizens on various issues found that in Dar
es Salaam 67% of respondents cited radio as their main source of
information while only 44% and 43% cited newspapers and television
respectively. In other towns, outside Dar es Salaam, 63% of
respondents cited radio as their main source of information while 24%
cited newspapers and 20% cited television as important. In rural areas
56% cited radio as an important source, but only 7% newspapers and
5% television (Maoni ya Watu, 2007, 53). Secondly, the majority of
citizens, particularly in rural areas can hardly afford even the minimal
costs of travelling to file cases in Dar es Salaam or even regional
headquarters where arbitration can be handled at press clubs offices.
Thirdly, awareness is still needed among most citizens in the country
on how they could access the services of the MCT in case they have any
complaints against media.
178
Source of information to people in Dar es Salaam, other towns and

in rural areas
Source of political, sports and international news Dar es
Salaam Other towns Rural areas All
Source: Maoni ya Watu 2007 (a survey by the Ministry of Economic

Planning andEmpowerment)
However, a more recent survey4 indicated that respondents in the

whole of Tanzania who indicated they had access to radio had reached
85%, followed by those with access to a mobile phone (62%), followed
by those with access to television (27%) and those with access to
internet (4%).
It is not surprising that the leading complainants (76%) came from
Dar es Salaam followed by 8% from Northern Tanzania and 5% both in
Lake Zone and Central Zone Tanzania. There were fewer complainants
from Southern Tanzania, Western Tanzania, and Zanzibar (all with only
2%) of the total number of complainants. The origin of about 12% of
complainants could not be established due to missing information.
However, it is unlikely that the missing information could have altered
the pattern of imbalance that is discussed here.
What the trend shows is that most complainants come from Dar es
Salaam because of proximity and access to newspapers. Most of them
are politicians, business persons, celebrities, or professionals or civil
servants who feel publication of a defamatory article exposes them to a
much bigger public. In fact, a significant number of complainants from
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regions outside Dar es Salaam were politicians, big business persons,

religious leaders or journalists. These are people who have knowledge
of the MCT; have access to newspapers; they have the money to cover
expenses of following up the cases and motivation or compelling
reasons to seek remedy for defamation. Otherwise the cases indicate
that ordinary persons outside Dar es Salaam do not have the luxury of
complaining at the MCT because apparently they lack awareness of
MCTs existence or mandate; they lack access to media outlets and the
money to cover expenses of travelling to Dar es Salaam or to press club
centres to launch complaints.
Nature of complaints
Most of the complaints (88%) were about articles that were deemed
by the complainants to be false or malicious and which had defamed
them, subjected them to public ridicule or contempt. Apart from
requesting monetary compensation as remedy, or to cover costs
incurred in following up the cases, almost all complainants demanded
an apology in the same weight they had been defamed. Another
category constituting 7% consisted of individuals or institutions whose
primary objective was to help put facts and records straight (from their
own points of view). In this category, complainants either claimed the
media had gotten the facts wrong or that the editors had refused to
provide them with the right of reply. Then there were 3% (journalists a
photojournalist and a cartoonist) who wanted a remedy after their
works were used by other authors without their consent while the 2%
simply sought to inform the MCT, or to seek clarification, about ethical
controversies in some media content.
Many of the articles about which complainants filed cases with the
MCT were so outrageous that in principle no editor worth the title
could have allowed them to pass a publication test. Yet some editors
continued to stick to their guns defending their decisions to the end
and refusing to apologize or to compensate the complainants in
question. Normally owners would expect editors to be good at
increasing sales and not at doing anything that would jeopardize profits
or incomes in their media outlets (Kilimwiko, 2009).
Although the 2% of editors (including other media that had not
subscribed to MCT) who refuse to comply with MCTs arbitration
decisions may appear to be an insignificant number, it is still a blow to
those individuals who turn to MCT for a remedy believing media
people can be held accountable through self-regulatory institution. It is
180
this wanton abuse of professional ethics and seeming impunity that

made respondents in all the categories studied in this research suggest
improvements in the self-regulation mechanism, including enhancing
the capacity of the MCT to issue binding decisions.
Duration of complaints
Clause 18 (10) of the MCT Constitution states:
Complaints sent to the Council shall be attended to

immediately and the Ethics Committee shall strive to conclude
every matter before it within three months.
One of the arguments put forth in favor of self-regulation is that the

process of arbitration takes a much shorter time to reach a verdict
while in courts of law cases can drag on for years. In the data that is
analyzed for the period of this research, the longest arbitration at the
MCT took over a year to reach final verdict while the shortest took less
than one month. On the average most cases took between three to four
months to reach a conclusion. Some of the reasons provided for the
variations in the period of arbitration include the following:
i. Upon registration of cases complainants are asked, as per

procedure, to try settling disputes with the administrative
hierarchies of the media outlets in question before the cases
could be considered for arbitration. In some cases, the
complainants are made to wait for appointments with editors or
publishers for months prompting complainants to opt for
arbitration at the MCT;
ii. In some cases the parties to a complaint find a date slated by the
MCT for arbitration practically inconvenient for them,
prompting postponement for a later date. Some cases are
postponed three to four times pending a date that is convenient
for both parties to a dispute;
iii. There are also cases in which, after a decision is reached at the
MCT for the parties to settle out of Council, negotiations
between editors and complainants drag on for months without
any amicable solution;

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iv. Another reason for dragging of some cases is simply non

appearance of one or both parties on the date slated for arbitration
which leads to postponement to another date;
v. Some cases were settled within one month because of the

convenience of both parties in disputes and convenience for the
MCT itself.
Nonetheless, since shorter periods of arbitration as stipulated in the

MCT constitution constitute one of the main advantages of self-
regulation over courts of law, it does not seem healthy for MCT cases
to drag beyond three months. Again the dragging out of cases
discourages some complainants from relying on the MCT arbitration
process in the future because it leads to unnecessary costs of following-
up the cases as well as longer periods of psychological suffering by
complainants. As respondents in all the categories studied in this
research have observed, wasting this advantage would erode the MCTs
niche of advantage over courts of law thereby discouraging
complainants from turning to the self-regulatory mechanism for a
remedy.
Types of remedy sought

Section 1.4 under rules of procedure states thus:
Because mediation is one of the basic pillars of the Council,

the Council cannot help complaints whose express purpose
(of complaining to the Council) is to get money. Money
awarded to complaints in terms of fines from respondents
is only a result of mediation, not the basis of filing
complaints in the Council. Therefore, the Council advises
any would-be complainant whose purpose of coming to the
Council is to get money to take their cases to the courts of
law.
Still, the majority of complainants who take their cases to the MCT
tend to ask for monetary compensation as would be the case in the
Courts of Law. Although some complainants would ask a reasonable
amount to cover costs of following up the case, there appear to be two
other motives as well: one is to gain monetary compensation for being
wronged by media as a remedy for actual damages suffered. A good
182
example is a 17 year old girl named Neema Malekela who brought her
case to the MCT claiming that newspaper cartoon strips defaming a
woman bearing her name and profile had prompted her father to
withdraw the school fees he was paying for her to join a nursing
college. Neema, who came from a poor background, was awarded a
Tsh two million (Approximately USD$1,000) consolation grant in the
hope that it would help cover her school fees and other expenses that
her father had withdrawn.
Another motivation for monetary compensation sought is to punish
the media by having them pay for their mistakes and deterring them
from harming others in future. Some complainants who learned, after
the arbitration process had started, that they could not get monetary
compensation in terms of millions of shillings, withdrew their cases
and proceeded to the Court of Law.
Frequency of complaints by media outlets

Although the number of times a media outlet appears before the
MCT to respond to complaints may not necessarily be a sufficient
explanation about its ethical performance, it may be interesting to note
that the leading targets of complaints are serious, well established
media outlets. Partly, though significantly, one explanation is that at one
time the owners of tabloid newspapers pulled out of the MCT because
they considered its adjudication as another possible threat to their
survival. On the other hand, serious newspapers are considered to have
more impact among audiences and hence what they publish is taken
more seriously than what is in the tabloids.
Nonetheless, a total of 45 media outlets were brought before the
MCT in the period under this research; 15 of them tabloids, 11 serious
dailies and weeklies, four radio stations, including the government
RTD and three religious newspapers. Other media outlets included two
television stations, one with national audience and another one
regional. There was also one party (CCM) newspaper, one sports paper
and a ministerial newsletter. The leading target of complaints was
Nipashe (appearing before the MCT 18 times), followed by Majira and
Mwananchi (eleven times), and The Guardian and Mtanzania (eight
times). The leading tabloid Ijumaa appeared before the MCT five times
followed by Dar Leo, Risasi, Rai and Kiu (four times each). Kasheshe,
Daily Mail, Msanii Afrika, Hoja, Taifa Letu, and Amani all appeared
before the MCT three times in ten years. There were ten newspapers
which appeared two times and the rest appeared only once.
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Nevertheless, although some missing information could alter the actual

ranking above still the picture of trends remain more realistic.
Conclusion
Although self-regulation can employ various methods of
accountability, from within the privacy of newsrooms to the public
arena, they may not necessarily be sufficient to ensure professionalism
and media accountability in a young democracy as findings in this
research also reveal (See also Mfumbusa, 2006). The majority of
respondents in this research shared the view that although the MCT
had done its best in spearheading self-regulation of media in the
country, it still lacked teeth to bite irresponsible media. In fact about
half of respondents in the survey even suggested government
intervention to ensure media accountability. The MCT was also spotted
as being so dependent on donors for its sustainability that its own
independence was questioned. Again because media owners paid
subscription fees to the MCT it made them think the Council had no
right to admonish them in public.
Generally, the respondents in this research clearly demonstrate an
understanding of shortfalls of Tanzanias quasi-liberal democracy and
its consequent limitations regarding the role of mass media. While
respondents generally agree that democratization has expanded space
for public debate and citizens participation, they still maintain that the
guarded interests of those who control the markets tend to limit that
space. As a result, they argue, the media are technically abdicating their
role as the voice of the voiceless or as an effective forum for diverse
views especially those that are opposed to the status quo.
Respondents in the focus groups, for example, admit that editors are
often given instructions by owners about views or persons that should
not be given space or airtime in their media outlets.
Below is a summary of a range of respondents ideas about their
expectations of democracy, the role of media, issues of accountability
and the ideal regulatory framework:
Expectations of Democracy Role of media in

democracy Ethical issues for accountabili
184
Looking at the typology above, the views of respondents suggest a

different strand of democracy and abiding media regulatory
framework which deviates critically from the Western liberal
democratic models, particularly in the USA and the UK as described
by Nordenstreng (2006) and McQuail (2007). The respondents views,
which still reflect communal values that were central to Africas pre-
colonial communication, appear to be more in tune with the
Scandinavian typology presented by Nordenstreng and McQuail as:
Information, Surveillance; Criticism, Participation; Forum, Open Access
than with any other Western model.
Three key points help to summarize the central conclusion of this
article. Firstly, most respondents in all the three approaches of this
study view media laws, ownership interference, politicians as well as
corporate sectors influence on mass media as major obstacles to the
medias role in promoting and sustaining democracy. In general
respondents further express concern about irresponsible journalism caused
by lack of professionalism, poor pay, corruption and conflict of
interests which, according to some of them, can be addressed by either
government intervention or through a statutory media council. Almost
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all respondents fault the neoliberal media for publishing lies, shallow or
inaccurate reports, bias and sensationalism. They also attribute this lack
of professionalism to low education, poor salaries and changing values
among journalists, factors that render them vulnerable to conflict of
interest and corruption. Most of the respondents in focus groups and
interviews deem a strong public service media as well as community
media as necessary to bridge the gap as well as to serve as a benchmark
for the role the media should play in democracy.
Secondly, although respondents generally view MCT as a necessary
mechanism to foster self-regulation as opposed to government
control they still view it as ineffective and in need of teeth to make
its decisions binding. Since the mass media function within the context
of neoliberal democracy, they tend to be more accountable to two
centres of power: politicians and those who control the markets.
Respondents views support a position maintained by Herman and
Chomsky (1994), McChesney (1999), Curran (2002) and others about
the behavior of media in advanced liberal democracies. Consequently,
instead of assisting in transforming or liberating society, the media are
seen as manipulating citizens to satisfy interests of owners, politicians
and the business sector which sustain them through adverts.
It is thus not surprising that a considerable number of respondents
think minimum government intervention is necessary to ensure sanity
among media practitioners and to protect the rights of others.
Nonetheless, some respondents in focus groups and intensive
interviews think it is not appropriate for the government to own media
and at the same time to be the prosecutor, judge and executor of
punishment to erring media. Equally important, respondents maintain
that often the government uses existing draconian laws selectively to
punish media outlets that are not performing their watchdog role
ethically. It is these arguments that seem to give credence to support for
self-regulation of media.
Thirdly, although the MCT seems to have played a significant role in
introducing self-regulation of media as cases brought before it for
arbitration demonstrate, its effectiveness appears to be limited. On the
average in the period under study (1997-2006), the MCT handled
about 15 cases each year most of which were from ordinary citizens
followed closely by those from politicians. The list of complainants
shows a mix of profiles ranging from national leaders (the Tanzanian
Vice President, for example) to an ordinary 17 year-old girl whose
character was defamed in a series of cartoon strips in a newspaper.
186
However, the majority of complainants still come from the

DaresSalaam and its neighboring districts, a proof that other ordinary
citizens, for example, from upcountry may have difficulty accessing
MCT services. Two major reasons account for this. One, although they
are the leading complainants, most ordinary citizens do not access
media as easily as elites and business persons do. Two, even if they have
access to media, they tend to lack the money to cover the costs of travel
and subsistence while following up their cases.
The duration of the arbitration process varied between one month
for the shortest and over a year for the longest. However, in some
situations the duration of cases was made unnecessarily long mainly
because of non-cooperation from editors or publishers. Compensation
or remedy to complainants also varied where the highest was Tsh
3,000,000/- while the lowest was just a handshake. Compared to fines
that media are obliged to pay in defamation suits in courts of law,
MCTs amounts appear extremely modest and a relief to media outlets.
Nonetheless, almost 90% of cases were about complaints against
false, biased or malicious allegations. This calls for critical reflection on
whether the arbitration process itself is helping journalism practice to
improve. Also it was evident from the findings that there were cases in
which editors simply refused to cooperate in the arbitration process
and MCT could not do anything about it. This affects not only public
trust in self-regulation but also the reliability of the notion that the
media in a liberal democratic environment can indeed be willing to be
accountable to citizens. This is made more precarious by the fact that
codes of ethics in newsrooms have a very limited role as mechanisms of
accountability. As Mfumbusa (2006) has aptly observed codes appear to
have been adopted to avert the governments regulatory intervention
rather than to be tools of serious self-regulation. Similar criticism was
made by Nordenstreng (2000) about the effectiveness of self-regulation
of media in general.
Two concluding statements can then be extrapolated from the
conclusions above. The first is that liberal democracy does not seem to
provide an appropriate basis for self-regulation of media in young
democracies especially in an environment where media are used by
owners, politicians and the corporate world as a tool to facilitate vested
interests at the expense of promoting and sustaining democracy. The
second statement is that the effectiveness of the Media Council of
Tanzania a central mechanism for fostering self-regulation of media

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is weakened by a number of factors the most important of which

include the following:
The mass media, particularly privately owned media, behave as
any other business that seeks profits and treat each other as
competitors hence weakening the basis for professionalism as
well as professional solidarity;
The MCT lacks strong backing from all media houses which are
the key sources of its legitimacy;
The MCTs decisions might be adhered to by over 90% of the

parties to arbitration but it does not stop media outlets from
repeating the same ethical violations;
The MCT only waits for individuals to complain even when often
the media commit gross violations of the code of ethics to
which they committed themselves;
The MCT does not have a mechanism of ensuring that

newsrooms adhere to the code of ethics as a matter of routine;
The MCT lacks powers to enforce its arbitration decisions,

something that gives leeway to editors and journalists to violate
ethics knowing the nature of consequences;
The MCT is not widely accessible to the majority of citizens,

particularly those outside Dar es Salaam and other larger cities;
Despite MCTs efforts to promote its various activities, including

arbitration verdicts, there is a lack of convenient mechanisms
through which citizens could discuss them and also channel
their complaints about ethical violations;
The MCT relies heavily on donor funding for its activities such
that its independence has been questioned by both the
government and other institutions including some media as
well as individuals.
Nevertheless, despite these shortcomings, the MCT has registered

some positive results to its credit as reflected throughout this study
which include the following:
188
i. The arbitration process has become more dynamic and

acceptable to both the government and the general public. This is
evidenced by more complaints from government officials as well
as from the public. This year alone, two former Prime Ministers,
Frederick Sumaye and Edward Lowassa have filed their
complaints with MCT. Another former cabinet minister,
Muhammed Seif Khatib and a leading Tanzanian businessman,
Ali Mfuruki, have also filed complaints with MCT;
ii. The MCT has intensified research and publication to bridge the
knowledge gap on issues of media practice, media accountability and
self-regulation. Currently, the MCT publishes State of the Media
Report, an annual publication on media environment; Scribe a
journal that publishes scholarly articles; Media Watch & Barazani
publications that cover media matters as well as reports;
specialized manuals for training journalists on specific beats;
iii. The MCT has recently introduced radio and television spots
seeking to create public awareness of its mandate as well as to
carry out advocacy messages on the need to enact Freedom of
Information and Media Services Laws;
iv. The MCT now issues a well known Excellency in Journalism
Award (EJA) annually, recognizing ourtanding performamce of
journalists which, according to MCT official, it has encouraged
competition among journalists to excel in the profession;
v. The MCT initially supported and has continued to promote as
well as support the idea of having a viable Editors Forum which
enables editors to meet on a regular basis to discuss ethical as well
as other daunting challenges facing their profession. The Forum
also provides leaders in both the government and the public sector
to meet with editors to discuss how best they can work together
while respecting and enhancing editorial freedom and
independence;
vi. The MCT started to conduct media monitoring of specific
coverage on problematic or sensitive areas, including how the
media generally covered issues of people with disability. According
to the MCT official, after two years of monitoring media coverage
of people with disability, MCT used the findings to advise media
practitioners how to improve their coverage. The official says the
coverage of people with disability in Tanzania has improved by

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95%, prompting a shift to monitoring of other aspects of media

coverage.
From these findings, it follows that there would be

recommendations on how to strengthen MCT in order to make self-
regulation work more effectively. Below are some key
recommendations which are born out of research findings:
i. Enhance support of the MCT by key stakeholders media
owners, editors, journalists and the public;
ii. Enhance sustainability capacity of the MCT so that it does
not have to depend on donors forever;
iii. Enhance the capacity of the MCT for proactive monitoring
and publication of leading defaulters of ethics;
iv. Enhance the MCTs public education about good journalism
and how citizens can demand media accountability; Initiate
public or citizens awareness on how they can demand
accountable journalism;
v. The MCT should initiate and help establish newsroom
accountability systems and regular in-house training;
vi. Strengthen other journalism associations such as Editors Forum,
trade unions, Media Institute of Southern Africa (MISA),
Tanzanian Association of Media Women (TAMWA), etc.
vii. Establish a separate Media for Democracy institution to be
charged with: media monitoring, media research, in-service
training, developing training material, publishing reviews of
media performance, carrying out public surveys of media use and
citizens views about media performance, engage the public in
demanding media accountability, work closely with the MCT,
media houses, civil society and establish mutual relations with
government as well as international partners committed to
promoting media freedom and accountability;
viii. Establish true public service media which should be
independent from government or other forces with interests to
pursue through media. The advantages of such media would
be as follows: Firstly, a true public service media would be
expected to serve the public and national interests effectively,
190
efficiently, more professionally and reliably. Secondly, a quality

public service media would be well funded to extend its reach
to all areas in the country so as to serve all citizens without
excuses of costs. Thirdly, such a professional media would serve
as a model for other private and commercial media to gauge
themselves in terms of professionalism and its focus on
information and programming that put public interest first.
I would argue that in a transformative form of democracy the
government could together with parliament, civil society, other
citizens associations, media industry, professional associations, and
other relevant bodies find a consensus on values and modalities that
could enhance the capacity of an independent self-regulatory body to
address the pitfalls of neoliberal media (Christians, 2004; Fourie, 2008).
While liberal thinking has a tendency to frown at the mention of
government in regulating media, under the circumstances of
transformative democracy, made evident in this dissertation, such an
option is to a large extent inevitable. Nordenstreng (2000, p. 177) for
example (also concurring with Hamelink,1999) rightly argues that
laws, markets and media self-regulation tend to coexist and that even
self-regulation itself is always accompanied by some degree of legal
regulation not to censor but to guarantee that minimum standards of
democratic order and human rights are respected. Italy and Denmark
are examples in Europe where self-regulation of media has been
strengthened by statutory force (Rioba, 2012). Nonetheless, I would
also argue that any government initiative to institute legal regulation of
media must be based on consensus obtained through closer
consultations with all key stakeholders as was the case in Tanzanias
process to formulate new information and broadcasting policy from
2001 to 2003.
Such initiatives have to go hand in hand with the establishment of
public service media that would provide a benchmark for good
journalism while at the same time playing the role of watchdog;
unifying and mobilizing citizens; providing a forum for diverse groups
to air views; promoting national culture and values as well as setting
the agenda for defending and promoting societal interests at all times.
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196
A long wave of novelty: The tension,
social and legal tests in the delivery of
a National Media Commission in
Ghana
By Osei Kwadwo Adow
Abstract
The expectation that the formulation of the National Media Commission
(NMC) in the 1992 Constitution of Ghana would provide the mechanisms
for the protection of both the freedom of the media and the regulation of
the media as well as protection of the rights and freedoms of individuals
has not been realized. The NMC has not been able to control increasing
abuses of journalistic and editorial responsibility. This article holds that
part of the problem is the faulty legal basis in Article 173 of the Constitution
and the lack of regulatory powers of the NMC compared to the Parliament,
Ministry of Information and the National Communication Authority. A
deeper cause of the problem appears to be the lack of a tradition of civility
in the public discourse of Ghana, especially in the political sphere, that the
NMC can appeal to.
Key words: Ghanaian Constitution, media regulation, National Media

C o m m i s s i o n , s o c i a l c a p i t a l , c i v i l i z i n g p r o c e s s
Introduction:
The adoption of the 1992 constitution of the Republic of Ghana
marked the first time in the history of mass communication in Ghana
that entry barriers were lowered or virtually removed, and the days
when the state controlled a large measure of communication resources
in the country no longer existed. With this, it was hoped that the
constitution would provide protection for the media and also protect
individual rights and freedoms within the context of democracy. The
same constitution provided for a National Media Commission as a
Osei Kwadwo Adow (stemson@yahoo.com), a solicitor and barrister of the Supreme Court
of Ghana, is Senior Lecturer in political science and Head of the Social Science Department
at the Ghana Institute of Journalism. He is co-author with D.K. Twerefou and Ebo Turkson
of Labor Market Flexibility: Employment and Income Flexibility in Ghana (Geneva: ILO)
and The Politics of Communication Policy Making in Ghana, African Communication
Research, 3 ,

197
Osei Kwadwo Adow
control mechanism to ensure high standards and also check media

excesses. However, there is increasing evidence that the new media
freedom is being exercised in a very muddled way as increased
participation has decreased professionalism and exacerbated political
and social polarization.
A keen observer of the media in Africa observed that beyond the
seemingly perfect Ghanaian posturing lies a messy imperfect world
of editorial sins (White, 2012, p. 28). Indeed the return of freedom to
Ghanaian journalists did not come without public criticism of
professional performance. While some journalists came under severe
public and official criticism, others found themselves dragged to court
to face legal suits, and the lucky few walked away from the corridors of
the National Media Commission (NMC) with a mere reprimand
(Bonnah, 1996). Ansah (1996) also had this to say it looked as if the
editors had declared war on journalistic ethics or decorum. There are
some of them which are so abusive that they appear to be fit for gutters
in a jungle. And the NMC was tolerating this.
On the issue of professional ethics Bimpong-Buta (2007, p. 461), in
his book, The role of the supreme court in the development of constitutional
law in Ghana, quoted a commentator as follows There are several
misfit journalists in the country whose actions must be severely
brought under controlsome sadly call it freedom of expression, but
many of the so-called journalists would not survive a day in a more
civilized and democratic country where freedom of speech is well
defined and practiced. These observers seem to be asking whether
the media freedom is a blessing or a bane and, if a bane, why is it such
a difficult institution to tame. It is also observed that besides the lack of
professional training the medias emergence from decades of state
monopoly and authoritarian control encouraged particularly the
privately owned press to challenge issues and to test out the laws and
their rights under the constitution (Karikari and Kumado, 2000).
This paper will argue that much of the editorial liability has a legal
basis. Article 173 of the 1992 Constitution holds that subject to Article
167 of the constitution (which spells out the functions of the National Media
Commission), the National Media Commission shall not exercise any control
or direction over the professional functions of a person engaged in the
production of newspapers or other means of communication (emphasis
mine). The question is whether the National Media Commission
(NMC) can control the quality of media as a single unit within its
constitutional functions without government intervention? Indeed,
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A long wave of novelty
there is need to interrogate article 173 within the discourse that the
general communication environment in Ghana within which the NMC
is embedded is characterized by a civilizing process that is struggling to
build up a sufficient stock of social capital.
Bringing in social capital and the civilizing process

To understand better why the National Media Commission finds it so
difficult to sustain the quality of professional media performance it
may be helpful to examine the weakness of the underlying social
capital and and what Elias calls the civilizing process in Ghanaian
society.
When Putman (1993a and 1993b) launched social capital as a
popular focus for research and policy discussion, the World Bank
found it a useful organizing idea to appreciate development in various
societies particularly in developing societies (Smith, 2000-2009).
Fukuyama (1999, p. 1) defined social capital as an instantiated
informal norm that promotes cooperation between two or more
individuals. He extended this definition to connote a private good that
is nonetheless pervaded by externalities both positive and negative. In
this sense, positive externalities is the potential cooperation that
remains within the group or individual and the negative externalities is
when groups and individuals treat outsiders with suspicion, hostility, or
outright hatred and examples are the Ku Klux Klan and the Mafia as
having social capital but also produce abundant negative externalities
for the larger society in which they are embedded (Partha Dasgupta in
Fukuyama, 1999, p. 2).
Accordingly, Fukuyama sees social capital as related to traditional
values like honesty, the keeping of commitments, reliable performance
of duties, reciprocity and the like. Fukuyama holds further that,
another way to look at the concept is through the radius of trust. He
explains that all groups embodying social capital have a certain radius
of trust, that is, the circle of people among whom cooperative norms
are operative. If a groups social capital produces positive externalities,
the radius of trust can be larger than the group itself. And it is also
possible for the radius of trust to be smaller than the membership of
the group which in modern society may be thought of as a series of
concentric and overlapping radii of trust. To (Fukuyama, p. 4) social
capital functions to reduce transaction costs associated with formal
coordination mechanisms like contracts, bureaucratic rules, provisions in a
constitution and the like (emphasis mine). He holds further that many
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Osei Kwadwo Adow
complex services are very costly to monitor and are better controlled
through internalized professional standards than through formal
monitoring mechanisms (p. 4). Borrowing from Alexis de Tocqueville
in Democracy in America, Fukuyama sees the political function of social
capital as the art of association, and concludes that an abundant stock
of social capital is presumably what produces a dense civil society
which in turn has been almost universally seen as a necessary condition
for modern liberal democracy (p. 5).
In sum, social capital reflects the prevalence of overwhelming trust
for the institutional and regulatory climate of society (Coleman, 1988;
Amponsah, 2006, p.52) With civil society, preference will be for a
working definition within the context of Shils (1991) and what Elias
(1939/2000, pp. 449-483) calls the civilizing process. This is because of
the attempt to move away from the use of civil society as being in
relation to the state but to use it as one of the fall outs from societies in
transition in Africa. This is meant to be used to question the practice of
journalism in the so-called emerging democracies such as Ghana.
According to Shils, for civil society to exist, the conduct of members of
society towards each other must be characterized by civility which
translates into polished and refined manners as expressions of respect
for other members of society. It is a precondition for democratic
practice as citizenship cannot be effective if the rights and the dignity
of the person are not respected (Ibrahim, p. 138).
In Elias view, the process of civilization involved a progressively
stricter control of emotions and habits of restraint which lead to socially
institutionalized frontiers of shame and emotional standards. In a sense
this means the control of impulse, drives, and emotions regarding our
animal nature and putting such activities behind us. When this change
occurred it became manifest first in public and in private as well (Elias,
1939/2000, pp. 449-483). It is the contention of this paper that
although civil society elements are present in Ghana and taking in
some ways a dense form, the civilizing process is rather slow in growth.
It is this papers further contention that it is not the presence of civil
society elements alone or the civilizing process alone that stand to
promote democracy but it is the presence of the two that constitute the
necessary conditions for the development of democracy in Africa and
Ghana in particular.
The choice of the concept of civilizing process and particularly social
capital as devices for evaluating the NMC in Ghana are for three
reasons: firstly, social capital is important to the effective functioning of
200
modern societies, and also the sine qua non of a stable liberal
democracy. This reasoning is based on the assumption that every
factor is interacting with and influencing every other factor, and a high
rating in press freedom is considered an effect of free elections as well
as a cause of free regime transfer, and a relatively high degree of
Editorial Freedom and Responsibility (EFAR) is considered a cause of
good governance (White, 2012, p. 29), a postulate Mafeje (1995, p. 5)
will describe as determinate conditions. Adopting Mafeje is to seal
White and Smith (supra) into the discourse as practical questions. This
has been rightly observed by (Josephi 2008, p. 285) as although
journalism practice continues to be a challenge to political
accountability in various socio-cultural contexts the journalism-
democracy paradigm that has developed in the West during the 20 th
Century may not be the best model for a the normative theory and
journalism research in new globalizing political realities.
In addition, a chief proponent of social capital considers it as
constituting the cultural component of modern societies and as the
basis of formal institutions, the rule of law, and rationality (Fukuyama
1999, p. 1). Secondly the notion of social capital and the civilizing
process will be a useful way of entering into debates about civil society
and central to research, and recently, including the International
Monetary Fund (IMF) that wants to reclaim public life (Smith 2002-
2009, p. 1) What has also been seeded is the awareness of the
possibilities of journalism being a part of civic culture (Josephi, 2008, p.
394). And, thirdly. the devices stand as useful and heuristic for looking
at the constitutionally entrenched media in African types of democracy
in general and Ghana in particular. Indeed, this study is concerned
about the absence of long standing traditions of civic engagement that
have significantly affected the level of performance and effectiveness of
constitutional institutions including Ghanas National Media
Commission.
The first part of this paper provides the map for looking at the
media and democratic environment in Ghana, and it involves bringing
together social capital and the civilizing process. Second it will provide
a historical background of the media that will generate the rationale for
the setting up of the National Media Commission as an innovation.
Third the paper will critique the 1992 constitution of Ghana with
respect to communication and the prevailing control mechanisms. The
fourth part will lay out the structure of the NMC and the remaining
parts will involve the discussions and testing the innovation. In terms
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Osei Kwadwo Adow
of methodology, the paper takes a historico-socio-legal approach which

is emphasized by Josephi (2008, p. 387). This approach holds that it is
only by appreciating the historical, social and political circumstances
that the current state of the media can be understood.
The media of mass communication will be seen as groups, each on
its own producing public goods that have both positive and negative
externalities. The NMC will remain a constitutional construct for the
regulation of the media.
It is the argument here that with the absence of a civilizing capacity,
the National Media Commission will fail to institutionalize strict control
of emotions and professional habits into high media standards
sufficient to support the task of building a democratic society. In the
case of Ghana, the diminution of social capital within the
communication sector can be said to have began as far back as the
period of colonial administration. Perhaps Ansah (1994, pp.16-17;
Adow, 2012) and other analysts provide the raison dtre for the
absence of social capital in Ghanaian communication life. They hold
that the immediate post colonial single party states experiment whittled
all individual freedoms and fundamental human rights, and when
official opposition was outlawed, it only escaped underground thus
sowing the seeds of instability, and a spate of military coups as the only
method through which an obscene, obscure and opaque despotism
could be eliminated, and this has afflicted the country till today.
Historical Background:
Opening the Aperture of the Media -Civil Space: The Agency of
Lawyers
The character of colonial administration in the Gold Coast signified
the beginnings of the legal basis for the administration of the colony
with profound social, economic and political implications. In the
course of carrying out the new mode of governance, colonial rule
departed from traditional governance and left the local people with no
processes in terms of what they would legitimately look up to as the
right and proper way to administer the colony. The material conditions
of political, economic and social life also created a good deal of tension
between the colonial administration and the local people and also
began the new social forces in Ghanaian society that would forge new
forms of space to confront the alien administration and to protect the
social interest. The laws (Ordinances) and their technical interpretation
202
called in local experts, and naturally lawyers felt the deep urge to take
up the challenge.
According to Jones-Quartey (1974, pp. 1-6) one Mr. Niblett an
English lawyer realized that there had been a considerable amount of
legal and judicial innovation in the country in the form of ordinances
passed in 1853, 1876, 1879, and 1883 which provided him a large
material for publication (Jones-Quartey, p. 9). Niblett collected and
analyzed these legal documents but as to which constituency his
allegiance lay, does not come out clearly in the accounts, though some
accounts hold that Niblett intended to publish outside the Gold Coast
with British society as his readership. From the accounts Nibletts
publications did not attract any form of control from the colonial
authorities.
By the 1920s, indigenous lawyers had began carving out and
endeavoring to consolidate their position in society and to serve as a
voice for the colonized. One of the aims of these lawyers was to explain
the harsh colonial laws to the people and also begin the crusade for
political change in favor of the local people. They employed the
newspapers as the medium to battle for both civil and political spaces
and to liberate the associated communication space. The advantage
they had over the other fragments of society was that by being lawyers
they readily understood the colonial policies and could react to them
immediately. And as often happens in developed jurisdictions they
constituted a group in itself and knew what they wanted and how to
find it. The Gold Coast Bar Association constituted the avenue where
matters concerning the legal profession and matters of national interest
were discussed.
According to Jones-Quartey (1974, p.6) and Ala Adjetey (1996, p.62),
the Bannerman brothers established the Accra Herald and later
changed its name to the African Herald. This newspaper began to open
up the regular civil space as it was entirely hand written and circulated
within limited circles. Later on, J.E. Casely Hayford, Hutton Mills, J.B.
Danquah and other lawyers entered into journalism, some of them
establishing their own newspapers and others working on newspapers
established by other persons. To these lawyers the media became the
vehicle within which to discuss the new type of governance and its
related political system.
During this period, the colonial administration did not see the need
to establish an independent ommission to regulate the media but
rather defined the excesses of the media within criminal law (Criminal
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Osei Kwadwo Adow
Code, 1892 (No.12)) and passed libel laws to control the media. The
manner, in which the libel laws were employed, undermined the
development of any social capital that would contain home grown
features of respect and trust within the groups forming the media and
the state. Processes that would promote and facilitate coordination and
cooperation for mutual benefit did not exist. This seed sown by the
colonial administration marked instead the introduction of tension and
fear within society. The 1957 constitution however began to open the
tightly controlled communication space by providing for freedom of
conscience subject to the common law position that under the general
civil and criminal laws, particularly those relating to defamation,
sedition, obscenity and privacy, the media were free to publish
anything (Ashie Kotey, 2000). During this period, the undifferentiated
social force that initially confronted the colonial administration had
segregated into new social and political groupings to contest for
political power. The 1960 constitution was tailored to fit the first
African leader Nkrumah, as a particular political party and a social
force. Under this constitution, freedom of expression found in article
13 was placed under the presidents discretion which required that
newspapers had to obtain a license as a condition for publication.
Ansah, in a later writing, explained that the centralized control of
the press happened to be an ideological position taken by most African
leaders while at the same time most African countries adopted a
socialist ideology and patterned their practices and structures along the
lines of their ideological mentors and role models in Eastern Europe
and China (Ansah, 1994, p. 16). Writing much earlier Ansah had stated
that immediately after independence the noticeable feature of the press
was the demise or emasculation of privately owned newspapers
through political strangulation and the rapid growth in the number of
government owned or controlled press (Ansah, 1977, p. 26). He
elucidated that the general reasoning for the control of radio was that it
had to be monopolized by government for the purposes of protecting
the national interest, building the nation and creating a sense of
national unity. And this is because any form of decentralized control
could provoke divisiveness, parochialism, disintegration and ethnic
particularization.
According to him the reason for this state of affairs was that most
leaders in the developing countries and Ghana genuinely felt that they
needed newspapers and other information media to put across to the
people their programs, priorities and achievements and this function
204
had better been served by their own organs of communication (Ansah,

1977, p. 30). In the process, the private media, which belonged to
another set of social forces, wilted (Ansah, 1977, p. 33), and in terms of
ownership, control and structure a unique centralized system appeared
appropriate in the immediate post colonial period. Post colonial Ghana
had to live with the tension and absence of a mediating institution in
the form of a constitutional body (a media council) with legal functions
enforceable either by ethical and moral considerations or in the courts
of law (Ansah, 1994, p. 15).
After the overthrow of Nkrumah in 1966, it was proposed that, as a
way out of this situation of no guidance forthe media, the shares of the
government-owned newspapers be sold to the public for individual
citizens to become real owners of the press. However, it was also
observed that a few could monopolize the shareholding arrangement
so the Press Trust idea was mooted during the era of the Second
Republic (Ansah, 1977, p. 33).
Given the past political problems, it was proposed that the media
governance structure such as a Press Trust must have a membership
from clearly identified national institutions and associations including
the bench, the Bar Association, the Journalists Association, the Civil
Servants Association, the Chamber of Commerce, the National Council
for Women and Development, etc. The reasoning was that these public
bodies are reasonably independent of the government and can freely
choose representatives who are sufficiently concerned about freedom
of speech. To make the Trust independent from politics it was further
proposed that a funding arrangement be set up similar to that of the
universities which take an annual grant from the budget and the
disbursement is left to the universities. An alternative funding
arrangement suggestedwas that the government grant the Trust a
working capital (Ansah, 1977, p. 33). When Ansah suggested the idea
of a Trust he was mindful of the traditions of intolerance and the
ruthlessness established in several parts of independent Africa. He was
also mindful of the need to promote human rights and good
governance, as well as the need to embark on the project of media
pluralism as a bulwark for the promotion of democracy.
The 1979 Constitution of the Second Republic of Ghana
subsequently made elaborate provisions for general freedoms and that
of the media and thus provided for the establishment of a Press
Commission. Unfortunately that Republic and its Constitution did not
survive a military coup and the new idea was jettisoned. In July of
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Osei Kwadwo Adow
1980 and under the Third Republic the president inaugurated a 12-
member Press Commission entirely made up of party faithfuls. It was
set up to insulate the press from direct political interference so that
journalists in the public sector would discharge their duty objectively
without the fear of reprisals from the government. In 1981 the Press
Freedom Complaints Committee also made up of party faithful was
inaugurated to investigate any acts likely to interfere with the freedom
of the media to perform their professional duties. It was also to advise
the Press Commission on any enactments in existence or contemplated
which, in its opinion, impinged upon the freedom of the press in
Ghana. The Commission and the Complaints Committee singled out
the Daily Graphic, a widely circulated newspaper which was state
owned and state guided in almost every aspect of the production
including the editorial. In August of 1980 the Commission dissolved
the boards and directors of all the state-owned media institutions and
no reasons were given (Asante, 1996, pp. 81-84).
The Legal Framework for the National Media Commission

The guidelines for the conceptualization of both policy and the law
to govern the media commission are based on the national experience
since colonial rule. The general legal slogan is that any law that is not
inconsistent with the 1992 constitution forms part of the laws of the
country. Chapter five of the constitution lays down the general legal
framework for freedom of speech. It states by article 21(1) (a) that: all
persons shall have the right to (a) freedom of speech and expression,
which shall include freedom of the press and other media. This
provision is protected in Article 12(1) as part of the fundamental
human rights and freedoms enshrined in chapter 12 to be respected
and upheld by the Executive, Legislature and Judiciary and all other
organs of government and its agencies and, where applicable to them,
by all natural and legal persons in Ghana and shall be enforceable by
the Courts as provided for in this constitution.
To entrench this position as fundamental, Article 290 holds that the
provisions on the fundamental human rights and freedoms can only be
amended after the amending bill has been submitted to a referendum
held through out the country and at least 40% of the persons entitled to
vote, voted at the referendum and at least 75% of the persons who
voted cast their votes in favor of the passing of the bill.
This is a legal construct to forestall any executive encroachments on
the grounds of historical antecedent that under the 1960 constitution
206
the executive had some political control over the legislature while it also
had discretion on how to enforce human rights provisions therein.
Nkrumah exercised this discretion arbitrarily by putting in jail any
person who exercised his inalienable right to free speech. The
primary objective of the provisions on the media was also to make
information readily available to allow for valued judgments from all
citizens (Bimpong Buta, 2007, p. 429). Chapter 12 of the constitution
further promoted, protected and guaranteed the freedom and
independence of the media. This is explained by the constitution itself
in article 162 to mean the following: there shall be no censorship in
Ghana; there shall be no impediments to the establishment of private
press or media; and in particular; there shall be no law requiring any
person to obtain a license as a prerequisite to the establishment or
operation of a newspaper, journal or other media for mass
communication or information; editors and publishers of newspapers
and other institutions of the mass media shall not be subject to control
or interference by government, nor shall they be penalized or harassed
for their editorial opinion and view, or the content of their publications.
In Article 165 the constitution makes clear its conceptual basis on the
media. It holds that for the avoidance of doubt the provisions of
chapter 12 shall not be taken to limit the enjoyment of any of the
fundamental human rights and freedoms guaranteed under chapter 5
of the constitution.
As a mediating and controlling mechanism the constitution
provided for the National Media Commission with functions in article
167 discussed below. To make the Commission independent, the
Constitution provided in Article 172 that subject to the constitution
and any law not inconsistent with it, the Commission shall not be
directed or controlled by any person or authority in the performance of
its functions. This is further buttressed in Article 171 by financial
independence to the extent that all its administrative expenses
including salaries, allowances and pensions payable or in respect of
persons serving with the Commission shall be charged on the
consolidated Fund. It is within this legal framework that National
Media Commission would guide and ensure high standards of
professionalism.
However, Article 173 of the 1992 Constitution holds that subject to
Article 167 of the constitution (which spells out the functions of the
National Media Commission), the National Media Commission shall
not exercise any control or direction over the professional functions of a
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Osei Kwadwo Adow
person engaged in the production of newspapers or other means of

communication (emphasis mine). This is the contradiction that will dog
the National Media Commission in its attempt to fulfill its mandate.
A close look at the constitution reveals that it is a fusion of the British
and American models of governance, and this has exposed it to a
variety of interpretations regarding state interference and the freedom
to operate the media. Indeed there is some uncertainty with regard to
which of the two systems Ghanas constitution is modeled after. At one
point it is not clear whether Ghana is running the British example of
the Independent Broadcasting Authority (IBA) and British Broadcasting
Corporation which has direct jurisdictional powers to decide over
programming and with a duty to ensure that programs maintain a high
general standard and also ensure that nothing is included in programs
which offend against good taste or decency or is likely to incite disorder
or to be offensive to public feelings (Afreh, 1994, pp. 31-34). Again
while the British government has broadcasting traditions, conventions,
and shared common cultural and social values that dictate that the
powers are used to the minimum, Ghana has no such traditions,
conventions, and shared common cultural and social values.
At another point it is not certain whether Ghana has an eye on the
American example where with the Communications Act, Congress has
delegated supervisory responsibility to the Federal Communications
Commission (FCC) while using the broad guidelines of the public
interest convenience or necessity to define the FCCs discretionary
powers (Afreh, 1994, p.33). Albeit, some similarity is found with the
United States example where the FCCs rules are done through
formally adopted rules, processing standards, guidelines and
adjudicatory decisions. The difference however is that, while under the
Act only United States citizens, who qualify as to character, financial
resources and technical ability can receive licenses and which can be
granted for a limited term, can be renewed, can be sold and can also be
revoked or suspended.
The case of Ghana is not exactly as conclusive as that of the United
States. The position of the 1992 constitution is that there shall be no
impediments to the establishment of private press or media and in
particular, there shall be no laws requiring any person to obtain a
license as a prerequisite to the establishment or operation of a
newspaper, journal or other media for mass communication or
information.
208
Legal luminaries have observed, however, that going without a

license is dangerous and (Afreh, 1994, p. 33) cites article 164 to buttress
this point. The article provides that the provisions of Articles 162 and
163 of this constitution are subject to laws that are reasonably required
in the interest of national security, public order, public morality and for
the purpose of protecting the reputations, rights and freedoms of other
persons.
Though a license is not needed to establish a broadcast station in
Ghana, by the Telecommunication (Frequency Registration and
Control) Decree 1997 (SMCD.71) which is still on the statute books,
there is the need to obtain a license. There is as well as the Television
Licensing Decree of 1966 NLCD89), the Television Licensing
(Amendment) Regulations of 1991 (L.I. 1520) and above all the
National Communications Authority Act, 1996 (Act 524) (NCA), and
all these laws must be brought in sync with the 1992 constitution. L.I.
1121 makes detailed provisions on licensing of telecommunication
stations, installation or telecommunication apparatus, registration of
manufacturers of telecommunication apparatus etc.
Under L.I.1121 a broadcasting organization must submit to
International Telecommunication Union through the Ghana Frequency
Registration and Control Board seasonal schedules of its broadcasting
service. But while by the dictates of the constitution registration has
been abolished, Ghana as a member of the International
Telecommunications Union does not have a free hand in the allocation
and utilization of frequencies, and moreover state security cannot be
guaranteed if any person can establish radio and broadcasting services
and transmit whatever he or she wants. Notwithstanding No 162 (3) of
the constitution, it is still necessary to register and control frequencies
used by broadcasting and other telecommunication services.
Afreh suggested that in order to avoid that an executive might pose
a danger by using its power to register and control frequencies as a
lever to interfere with the establishment and operation of broadcasting
stations, it will be necessary that the Media Commission makes
regulations for the registration and licensing of other media for mass
communication (Afreh, 1994, pp. 35-40). Since Afreh was a judge of
the supreme court of Ghana, his opinion that registration and licensing
are important shows that the courts will not countenance an unfettered
media of mass communication.

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Osei Kwadwo Adow
Vision and Policy of the National Media Commission:

With the assistance of the Friedrich Ebert foundation the
Commission set out its own national policy vision and mission
statement. In spelling out the details of the national media policy the
members of the commission were guided by national and global
developments which called for pluralism and universal access, cultural
impoverishment, non marginalization of local language, education and
development, technological competence, human resources,
institutional capacity and public accountability. The vision of the policy
was to include large segments of the population in the communication
processes and to foster their participation in decision-making as
producers and consumers. The rationale for these principles was to
make the public interest paramount and to deregulate the broadcast
media which used to be state-controlled by promoting private
investment in the sector. Out of this, three working categories were
created: public media, commercial media and community media.
For print, the overall position of the national media policy was the
removal of governmental control over the state-owned or public
newspapers, allowing for the proliferation of commercial newspapers
and providing the opportunities for non-profit-making, non-sectarian
and non- partisan community newspapers in the district assemblies
and in every school.
For broadcast, the policy stated that airwaves being a public
resource, belong to the people of Ghana and the broadcast media are
challenged to hold it in trust and utilize it in a way beneficial to the
Ghanaian economy and society as a whole. For film, the policy
envisaged a National Film Board to oversee the implementation of the
various policy proposals on the development of film in Ghana and in
the areas of commercial and community film production. The same
goes for the wire services, advertising and public relations.
Establishment of the Commission

Pursuant to Article 166 of the Constitution, the National Media
Commission Act, 1993 (Act 449) was passed. The Functions of the
Commission are as follows (a) to promote and ensure the freedom and
independence of the media for mass communication or information,
(b) to take appropriate steps to ensure the establishment and
maintenance of the highest journalistic standards in the mass media,
including the investigation, mediation and settlement of complaints
made against or by the press or other mass media, (c) to insulate the
210
state-owned media from governmental control, (d) to take measures to

ensure that persons responsible for state-owned media afford fair
opportunities and facilities for the presentation of divergent views and
dissenting opinions, (e) to appoint in consultation with the President,
the chairmen and other members of the governing bodies of public
corporations managing the state-owned media, (f) to make regulations
based on constitutional guarantees for the registration of newspapers
and other publications, except that the regulations shall not provide for
the exercise of any direction or control over the professional functions
of a person engaged in the production of newspapers or other means of
mass communication and (g) to perform such other functions as may
be prescribed by law not inconsistent with the constitution. In an
appendage, the Act provided that in carrying out its functions the
commission shall not, by regulations or any other act, require any
person to obtain or maintain a license as a condition for the
establishment of a newspaper, journal or any other written publication.
The allowances of the chairman and members of the commission are
charged on the Consolidated Fund and in accordance with Article 71 of
the constitution which directs emoluments to be paid to the President
and other high public officers. And in accordance with section 23(1)
and (2) of the National Media Commission Act 1993 (Act 449) the
Chairman of the Commission is expected to submit to parliament an
annual report of the commission together with an auditors report.
Membership of the commission:

A constitutional amendment has changed the composition of its
membership from fifteen to eighteen. These bodies as they stand now
are: the Ghana Bar Association, the Publishers and Owners of the
Private Press, The Ghana Association of Writers and the Ghana Library
Association. It also includes the religious bodies i.e. Christian Group
(made up of the National Catholic Secretariat, the Christian Council
and the Pentecostal Council), and the Federation of Muslim Councils
and Ahmadiyya Missions. The training institutions of journalists and
communicators, The Ghana Advertisers Association and the Institute of
Public Relations of Ghana were also added. The rest are a person from
The Ghana National Association of Teachers, two representatives
nominated by the Ghana Journalists Association, two persons
appointed by the President, and three persons nominated by
Parliament. The commission is made to elect one of its own members
as chairman. It is significant that from the inception of the
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Osei Kwadwo Adow
Commission the position of chairman has been occupied by lawyers.

The current Chairman however is a seasoned journalist and former
ambassador. The executive secretary position has also been occupied
mostly by seasoned journalists, some of them with legal background.
Committees of the Commission

The actual work of the Commission is done on the advice of five
committees which are the Complaints and Settlement, Training and
Relations, the Legal Committee, the Media Committee and the Finance
and Administration Committee. What is of interest is that of all the
committees the Complaints and Settlement committee is directed by
the National Media Commission (Complaints Settlement Procedure)
Regulations, 1994 (L.I. 1587). The commission is also charged to
undertake the following activities: registration of newspapers, to
constitute and reconstitute the state-owned media organizations and
publications. Internationally, the Commission is represented on the
World Association of Press Councils and it is a member of the African
Communication Regulatory Authorities Network (NMC Report, 1999).
Finance and Administration

The Commission itself is serviced by a secretariat. At the head of the
administration is an executive secretary who sees to the day to day
administration of the Commission. He is assisted by such principal
officers as two deputy executive secretaries, one for finance and
administration and the other for operations. There are also places for a
settlement officer, a legal officer, a research officer, a relations officer,
administrative assistants and a principal accountant. The Commission
draws its financial emoluments from the consolidated fund. This
administrative organization guarantees that the control of the media is
firmly placed outside the direct reach of government and made
independent of the Commission.
Testing the innovation:

Change of Commissioners
The NMC constitutes one of the sites of political exchange owing to
the role of the media as one of the powerful resources in Ghanaian
society. The constitution provides in article 166(1)(c) that the president
must appoint two representatives onto the Commission and Parliament
should also nominate three representatives. By law the party in
government has four representatives while the opposition has only one
212
on the Commission. Politically, the majority and minority leaders of

the two main political parties National Democratic Party and New
Patriotic Party enjoyed automatic membership. This happened during
the early months of the institution of the fourth republic when political
trust among the major parties was low and there was the fear from
opposition quarters that the government might manipulate the
Commission. The idea that leading members of parliament the
majority and minority leaders appeared as members of the commission
was thought to be a check on each other. With the possibility of a
change of government at elections an automatic practice evolved when
the term of the commissioners became due and there was a new party
in government positions changed and the party out of government
would retain only one seat on the Commission. Similarly membership
of the boards of state-owned media houses also changed to reflect
change in government.
Testing Article 173 of the Constitution

One important article of the constitution that research has hardly
touched on is Article 173. The article holds that, subject to Article 167
of the constitution (which provides for the functions of the National
Media Commission,) the National Media Commission shall not
exercise any control or direction over the professional functions of a
person engaged in the production of newspapers or other means of
communication. Immediately after the promulgation of the 1992
constitution, there was a general and lay understanding of freedom and
independence of the media as the media being above criticism (Bonnah
Koomson, 1996). Political parties found the media to be the best
medium for disseminating their ideas, and subsequently brought a
large portion of the media under their control to be used as the route to
get hold of political power. Unable to control their own members
through print, the airwaves became the battlegrounds of the political
parties.
The trial of the NMC then began with the Complaints and
Settlement Committee becoming inundated with complaints, with
many complaints protesting insults from politicians. The actions of the
two major political parties for political power exposed the embryonic
absence of social capital as necessary trust and respect for each other
and the NMC as well as a regulatory body. The media reflect outright
hostility and hatred towards political opponents. Print and radio carry
defamatory words and statements such as liar, irresponsible, it is
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Osei Kwadwo Adow
only a fool, thief, etc, with some of them repeated several times on
television as sound bites. Political emotions, impulsive slogans, and
defamation campaignsare all channeled through the mass media of
communications as the politicians have found out that the NMC has no
control over the editorial directions of the media.
In the heat of the 2012 political campaign, a prominent politician
who owned a radio and television station made serious genocidal
statements against social sectors bordering on hate speech that caused
fear and panic and caused concern for national security. Public
discussions on the statements roundly condemned the statement and
called for the strict control of emotions. The role played by the
Commission in dousing the flames was minimal and ineffective. The
Commission only struggled to be part of the solution with terse
statements from the chairman and the executive secretary warning of
the dangers of hate and genocidal speeches.
Already in 2009 a professor in communications and director of
Media Foundation for West Africa, Professor Kwame Karikari,
described this situation as dangerous where politicians constantly
endeavored to own media houses and threw ethics and professionalism
to the wind (Daily Graphic, April 22, 2009). Realizing that the media
was going wild, he remarked that the media had fallen into the hands
of unscrupulous politicians due to the alarming increase in the use of
indecent language, false allegations, false alarms and blatant lies
emerging in the media, especially radio and print media (Daily
Graphic, 2011, p. 13). In 2011 he organized a forum to celebrate the
10th Anniversary of the repeal of the Criminal Libel Law with the theme
A decade of advocacy for press freedom and freedom of expression.
At the forum, former president Agyekum Kuffour advised media
organizations to institute measures that would promote self regulation
to enhance ethical and professional standards (Times, 11 August, 2011).
Raymond Ablorh a student activist with hindsight on the Rwandan
experience expressed concern that the National Media commission and
the Ghana Journalists Association ought to deem it expedient and
highly imperative to check the media before they kill us allit is no
insult to call the NMC a toothless dogand the GJA is also being more
protective of the journalist with a solidarity hug paying less attention to
ensuring that professional standards are upheld (Daily Graphic: August
2, 2011, p.10). Following from these harrowing occurrences, civil
society added its voice. The Institute of Economic Affairs (IEA), an
NGO, also with the Rwandan experience in mind, organized a
214
roundtable discussion for political parties, newspaper, radio and

television journalists and presenters, the clergy and academia to discuss
the anarchy of insults within the society and the mass media. The
media came under severe criticism as most of the speakers blamed
journalists for disseminating information that had virtually polarized
the country (Daily Graphic, 2010, 12).
The Apostolic Church of Ghana also condemned the rise of insults in
the Ghanaian political environment saying it is important for politicians
to tone down (Times, August 11, 2011). Arthur Kobina Kennedy, a
politician summed it all up that the press has been pouring fuel on
every little fire of insult that they find. Indeed, in many instances, the
press has been willing to start cycles of insults by exaggerating critiques
into insults (The Chronicle, August 2, 2011).
Complaints and Settlement committee:

It is within this committee that article 173 of the constitution and
dangers of unbridled media freedom may be understood. The 1997/98
annual report of the Commission indicated settling 47 cases. In 1999 it
received a total of 87 complaints out of which 38 were addressed to the
Commission and 49 were rejoinders. In the year 2000 the commission
received a total of 47 complaints with 46 being rejoinders. In 2001, it
received 196 complaints with 98 being complaints and 98 rejoinders.
In 2003, 47 complaints and 32 rejoinders were received. Eleven of the
complaints were struck out because the complainants decided to
withdraw the complaints during settlement and by the close of the year
14 complaints were outstanding. In 2004, a total of 48 complaints and
rejoinders were received.
In 2005, 34 complaints were received and in 2006, a total of 36
complaints were also received. Significantly, most of these cases were
political in nature and reflected the political struggle between the two
main parties (the National Democratic Congress (NDC) and the New
Patriotic Party (NPP)) in the private press mainly. It is inferred that this
spate of complaints have resulted from Article 163 of the constitution
which placed responsibilities on the state-owned media, but did not
place any responsibilities on the private media. The question is; can the
NMC breathe some trust and reciprocity into the private media climate
infested by politicians? This is indeed a daunting task since the
mandate of the NMC does not flow entirely into the programs and
activities of the private media. However, it is clear that the
Commission has some influential control over the state owned media
215
Osei Kwadwo Adow
houses i.e. The Ghana Broadcasting Corporation, the Ghana News

agency, the Daily Graphic and its group of newspapers, the Ghanaian
Times and its group of newspapers, and can demand that they write
and submit reports on their activities.
On the other hand as far as the private media is concerned the NMC
is faced with high level of expense in handling complaints but with
little power to improve low professional standards media as well as
enforce its decisions. In the course of its work one of its past chairmen
noted that the Commission could have performed better if it had the
power of enforcement. He said further that compliance with its
decisions is largely voluntary and dependent on the goodwill of parties.
He gave instances where parties had openly stated that they would not
appear before the Commission and would not comply with the
decision of the Commission (NMC, 2001 Annual Report).
Training and Relations:

Perhaps this is where the Commission has made some superficial
strides. However, the question is whether or not the publications and
training sessions have made any impact on the media professionals and
politicians, particularly those who own media houses. Based on the
National Media Commission (Complaints Settlement Procedure)
Regulations, 1994, L.I. 1587, the Commission has brought out four
publications: The National Media Policy, Broadcasting Standards,
Guidelines for Political Reporting and Guidelines for Rejoinders and its
Review in furtherance of its purpose (NMC Annual Report: 1997/98).
These documents have been highly publicized through workshops and
seminars and widely circulated among media houses. The publications
were supported by the Friedrich Ebert Stifung and the United Nations
Development Program (UNDP) through its National Governance
Program.
As part of the preparations for the 2000 Parliamentary and
Presidential elections the Commission in collaboration with the
Electoral Commission and the Ghana Journalists Association with
sponsorship from the Friedrich Ebert Stiftung, undertook a nationwide
seminar on political reporting. The Commission drew on its document
titled Guidelines on Political Reporting. In the same year the
Commission organized a seminar for the board of state-owned media
organizations and senior journalists as well as political parties. The
general topic was on the implications of the Supreme Court Judgment
that granted the NMC the right of appointment of Chief Executive
216
officers of the State-owned media. Similarly the commission organized

a seminar for senior journalists on the media and the law in Ghana.
The specific topics treated at the seminar included: The 1992
Constitution and the Media in Ghana, Freedom and Responsibility of
the Media, The judiciary and the Press, and The Publics Right to
Know vs. The individuals Right to Privacy. The Commission again
organized a seminar for Political Parties on Media Relations. The topic
for the seminar was Building and Managing Image, Press
Conferences and Press Releases, Rejoinders, and the NMCs
Complaints and Settlement Mechanism.
And in that same year the Commission had an seminar with talk
show presenters, editors and program managers and producers (NMC
Annual Report, 2000). In 2006 the Commission held a national
conference intended to create a forum for the presidency, leaders of
political parties, ministers, judges, members of parliament, the business
community, civil society organizations, traditional and religious leaders,
and journalists.
This conference was to bring together all these elements to dialogue
on the future of the media, with special emphasis on their role in
national development. By action of a Constitutional Instrument, the
National Media Commission guidelines on newspapers and other
publications registration. 2003 C.I. 39, was passed into law. This
empowered the Commission to register newspapers and publications.
However proprietors of newspapers opposed the legislation claiming
that it had the potential to curb freedom of expression.
Loose-fitting hands
Perhaps in the euphoria that greeted the drafting of the 1992
constitution, the framers did not recognize that they had created a
creature with loose-fitting hands incapable of performing the onerous
functions in its mandate. Three years after the National Media
Commission had been established the Parliament of Ghana passed the
National Communications Authority Act, 1996 (Act 524) to establish
the National Communications Authority to regulate communications
by wire, cable, radio, television, satellite and similar means of
technology for the orderly development and operation of efficient
communication services in Ghana and to provide for related purposes.
Among the responsibilities of the NCA was to advise the Minister of
Communications who is to oversee the implementation of the
provisions in Act 524 and also advise the Minister of Information on
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Osei Kwadwo Adow
policy formulation and development strategies for the communications

industry.
The NCA was also to grant licenses for the operation of
communication systems i.e., the system for the conveyance through
the agency of electric, magnetic, electro-magnetic, electro-chemical or
electro-mechanical energy, light energy of speech, music and other
sounds, visual images etc. Section 4 of the NCA Act provides that the
Minister may give to the authority such directions of a general
character as appear to him to be required in the public interest relating
to the discharge of the functions of the Authority. The Authority has a
board and a director general with members appointed by the
government. Section 9 of the Act also stipulates that no person shall
establish, install, operate or otherwise use a communication system or
provide communication services in Ghana unless he has been granted a
license for that purpose by the Board.
Section 12 stipulates that an application for a license shall be made to
the Authority and shall be in such form and accompanied with such
fee and documents as the Board shall determine. Indeed the Board has
a large discretion and has control over general provisions for expiry and
renewal and conditions for reapplication. The Ministry of Information
acting in concert with the Parliament of Ghana and through its
committee on Communications also has oversight responsibility for the
sector. This means the government still intends to have some control
over the media, and no government since 1993 has found it prudent to
provide the NMC with legal powers to sanction but rather given such
powers to the National Communications Authority. In the year that the
NCA was established the board rejected the applications of the
Christian Council, the Catholic Secretariat and the Pentecostal Council
to establish radio stations and no official reasons were given. (Public
Agenda, 1995, p. 1)
On the 11th of January 2010, the government set up a Constitution
Review Commission (CRC) under an Inquiry Instrument C.I. 64 to
ascertain from Ghanaians their views on the operations of the 1992
constitution and in particular the strengths and weaknesses of the
constitution and suggest possible areas of amendment and provide a
draft bill for possible amendments. The NMC made a representation
at the sitting of the CRC and argued that the NMC should have the
responsibility for broadcast authorization and that it should have the
power to grant or refuse the granting of a broadcasting frequency as
well as its suspension or withdrawal. The CRC submitted its report to
218
government on 20th December 2011 and the government issued a

White Paper on the report. The White Paper indicated that the
government does not think that the composition of the NMC puts it in
a position to professionally discharge this responsibility. The White
Paper held that the allocation of a frequency spectrum goes beyond the
requirements of the broadcast media and extends to security,
intelligence, navigation and aviation matters.
The White Paper subsequently proposed an independent National
Communications Commission (NCC) that will be provided for in the
Constitution, and be made responsible for the technical parameters of
communications activities including numbered frequency
authorization and broadcast authorization. It further proposed that in
allocating broadcast frequencies the NCC should consult with the
NMC. By this the last breath in the NMC to fight to become potent
enough to deliver on its mandate was gone and it will continue to
remain in a somewhat inferior position in relation to the other agencies
set up to regulate mass communications.
Conclusion - It wont work

Generally what is observed about Ghana in transition is that the
colonial and post colonial authoritarian past did not promote lasting
traditions of civic engagement but rather sowed seeds of division which
are being reflected in society. To this extent almost all state institutions
empowered to promote social control in this current democratic era
including The National Media Commission have come against strong
political forces. At the level of the media, civilizing habits bringing
control of emotions and self restraint are at best a thin veneer. This
state of affairs comes in the face of national activities such as electoral
politics where the media are strategically placed as a facilitator. In their
struggle for political power, editorial responsibly is employed by
politicians to the extent that the National Media Commission charged
to promote high professional standards is rendered ineffective.
Though touted as unique, the NMC will, however, remain on the
fringes of media control mechanisms in Ghana because it is
inadequately empowered by the constitution and constrained also by
Parliament, the Ministry of Information and the National
Communication Authority where the real powers of sanctions and
enforcement particularly of the broadcast media lie. Still, Ghanaian
society has not shown signs of collapse under unprofessional media
conduct as happened in some African countries. For all the lack of
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Osei Kwadwo Adow
social capital, a stronger civil society is proving to be the nursery of

democratic practice in post-1992 Ghana (Drah, 1996 p. 23). Having
put government on a short leash, civil society is equally standing up
against the mafia-like unprofessional conduct of the media.
For the Commission to work, it must be enabled to make
regulations not inconsistent with the Constitution, on the production,
direction and professional functions of any person engaged in the
production of newspapers or other means of communication. Such
regulation must have the force of law and the Commission must be
able to enforce and execute the law in the form of causes of action, and
appeals from its decisions must lie with the High Court, then to the
Court of Appeal and finally to the Supreme Court.
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economic growth, The American Prospect 93, 35-42.
Putnam, R.(1993b). Making democracy work: Civic traditions in modern
Italy. Princeton: Princeton University Press
Shills E, (1991). The virtue of civil society: Government and
Opposition. In E. Chole E. and J. Ibrahim (Eds.), Democratization

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processes in Africa: Problems and prospects (pp. 118-147). Dakar,

Senegal:CODESRIA,
Smith, M.K.(2000-2009). Social capital. The Encyclopedia of Informal
Education. 1-8, (www.infed.org/blio/social-capital.htm).
White, R.A. (2008). The role of media in democratic governance.
African Communication Research, 1, 269-328.
White, R.A.(2012). Why dont we have more editorial freedom and
responsibility in Africa? African Communication Research, 5, 27-
80.
Laws and Acts

National Media Commission (Complaints Settlement Procedure)
Regulations, 1994, L.I. 1587
Telecommunication (Frequency Registration and Control) Decree 1997
(SMCD.71) Television Licensing Decree of 1966 NLCD89),
Television Licensing (Amendment) Regulations of 1991 (L.I. 1520)
National Communications Authority Act, 1996 (Act 524) (NCA),
National Media Commission Act, 1993 (Act 449)
The 1992 Constitution of the Republic of Ghana
The Ghana (constitution) Order in Council, 1957
The Newspaper licensing Act, 1963 Act (189)
National Media Policy, Published by the National Media Commission,
National Media Review (Media Monitoring Report), Published by the
National Media Commission, September 2006,
Constitution Review Commission (CRC) Inquiry Instrument C.I. 64
Government White Paper on the report of the Constitution Review
Commission 2012
Reports
(NMC: 2006 Annual Report).
(NMC: 1997/98 Annual Report).
222
Government White Paper on the Report of the Constitution Review

Commission Presented to the President in 2012
Newspapers
Daily Graphic, April 22, 2010
Daily Graphic, April 22, 2011
Ghanaian Times, August 11, 2011
Public Agenda, 8-14th September 1995

223
224
Who watches the watchdog?
Evaluating the contributions of the
Media Council of Malawi (MCM) to
the quality and performance of the
media
By Peter Mhagama and Maclan Kanyangwa
Abstract
The democratic reforms that took place in Malawi between 1992 and 1994 led to an
unprecedented growth in the mass media. The Media Council of Malawi was
established as a voluntary, independent and non-statutory institution to promote
self discipline among its members and to consider complaints against the media
from the public. We argue that since its establishment in 1996 the objectives of
MCM are largely unfulfilled and the survival of the MCM is questionable. The
immediate problem of the MCM is the lack of funding to monitor the media; enforce
ethics; accredit journalists and address public complaints through its disciplinary
bodies. The deeper problem is the lack of management ability and ability to mobilize
support.
Key words: Media Council of Malawi, self-regulation, ethics,

accreditation
Introduction:
In its most common definition, a media council is a body set up
by the media to hear complaints (Kruger, 2009, p. 18). Important in
this definition is the realization by the media themselves of their
fallibility. Even more central is the principle of self-regulation, that is,
the acceptance of the continual evaluation of respected members of the
profession and the willingness of media practitioners to accept
correction of undesirable practice. To maintain their freedom and
avoid the intervention of the coercive power of government the media
Peter Mhagama is a Senior Lecturer in the Department of Language and Communication at
the Polytechnic, a constituent college of the University of Malawi. His recent publications
include State of Media Freedom in Malawi. African Communication Research, 4, 285-300.
Maclan Kanyangwa is Head of Journalism and Media Studies at The Polytechnic (University
of Malawi). His recent research focuses on informal institutions and public broadcasting regulation,
state of media freedom in Malawi, and media markets and commodification of news in Malawi.
African Communication Research, Vol 5, No. 2 (2012) 225--248

225
Peter mhagama and Maclan kanyangwa
voluntarily set up media councils to scrutinize failings of social

responsibility that might taint their image of disinterested public
service.
The media are generally known as the watchdogs of society,
meaning that since citizens cannot scrutinize the day-to-day activities of
public officials, civil society organizations and the media, in addition to
state agencies, are mandated and given legitimate powers to hold these
office bearers accountable (Tettey, 2006, p. 232). It follows, therefore,
that institutions that hold public officials accountable would,
themselves, display the qualities of good governance that they expect
from government, such as truthfulness, transparency, ethical conduct
and due diligence (Tettey, 2006, p. 244). However, many of those who
are targets of media criticism argue that the media have abused the
powers invested in them by the general public.
Typical of these accusations are that the media alleges that a
party has committed an action but without substantiation or evidence,
spreading misinformation, suppression of information, creating half
truths, distortion of information, and manipulation of data sources.
With the increased freedom that media in Africa have experienced in
the last twenty years, they have been increasingly targets of negative
criticism, complaints and even lawsuits. The loss of credibility also has
its negative economic consequences. In cases where they have been
found guilty in the conduct of their duties, media houses and
journalists have been subjected to harsh legal sanctions including
arrests and incarceration.
To avoid these problems, especially to avert lawsuits and their
consequences, self-regulatory systems have been established in many
countries to take up and deal with complaints from the public
through arbitration and/or adjudication processes (Bussiek, 2008, p.
2). Self-regulation also ensures that the media and journalists are held
accountable for their actions. These self-regulatory systems operate
under an established body or institution known by different names in
different countries: media council, press council, complaints
commissions, media commissions, press ombudsmen, etc (see
Bertrand, 2003). In Malawi, the medias watchdog is the Media Council
of Malawi (MCM). This article attempts to assess the contribution of
the Media Council of Malawi (MCM) to the quality and performance
of the media in Malawi.
226
Who watches the watchdog? Evaluating the Media Council of Malawi
The origins of the Media Council in Malawi

The idea of a media council in Malawi was first articulated at a
media conference held in the resort district of Mangochi in January
1994, four months before Malawi conducted the first general elections
to return to multiparty democracy on 17th May in the same year. The
objectives of the conference were to sensitize journalists on professional
ethics, to contribute to the free flow of information and ideas, and to
contribute to the establishment of a strong foundation for the
independent press. Given the context of elections, the conference was a
contribution to the democratization process in Malawi (Chitsulo and
Manganda, 2011). According to the conference, the media council
would be Voluntary, independent and non statutory to promote self
discipline among its members and to consider complaints against the
press from the public (Hall, 1994, p. 84)
The proposal to establish a media council in Malawi should be
seen within the context of the broader democratic reforms that took
place between 1992 and 1994. During the single party era, (the period
preceding the referendum in June 1993 and general election in 1994),
the media in Malawi were predominantly affiliated to the ruling
Malawi Congress Party (MCP). From 1964 to 1994, the state radio
station, the Malawi Broadcasting Corporation (MBC) was the only
radio station broadcasting in Malawi, apart from African Bible College
(ABC) radio - a religious radio station (Manjawira and Mitunda, 2011).
Until the early 1990s, Blantyre Printing and Publishing (BPP) company
was established in the one-party state as a media monopoly of the
print media (Hall, 1994). During the one-party era there were few other
newspapers or magazines. What existed could hardly be termed
mainstream media, especially since all studiously avoided serious
critical journalism and none was particularly successful in terms of
circulation (Hall, 1994).
An independent press1, in its broadest meaning, began in 1991
and early 1992 with photocopied anonymous letters and leaflets
distributed in public places at night. Since then, there had been a
proliferation of newspapers and other publications. Although some of
the newspapers have been going out of business, by 2011 the
newspapers still operating and expanding were the Blantyre
Newspapers Limited (BNL), publishers of The Daily Times and the
Malawi News, and Nation Publication Limiteds (NPL), publishers of
The Nation and The Weekend Nation (Chitsulo and Manganda, 2011).
These media houses have also come up with an array of weekly papers
227
and online publications. In addition, the Malawi Communications

Regulatory Authority (MACRA) has so far issued 47 broadcasting
licenses, for both radio and television.
The proposal for a media council, then, was part of a larger
process of emerging media professionalism. Hall (1994) records that
there were several organizations of media professionals at that
particular time. The most notable were the Journalists Association of
Malawi (JAMA), the Publishers Association of Malawi and the Media
Workers Union. While recognizing that these organizations- and
indeed other bodies- have a key role to play in media development,
Hall noted that their role had been limited by the sectional interests
that they represented. He expressed some reservations about the
influence of these associations.
There are some media development activities which are

perhaps much more important in the Malawi context,
which these organizations individually are likely to neglect
because they fall outside the scope of their interest or
because they require resources which may not be available
to a single organization (Hall, 1994, p. 84).
In a critical examination of the media economic environment

obtaining at the advent of multiparty democracy in Malawi, Hall (1994)
explores and outlines in detail the importance and mandate of a media
council arguing that it could, among other things, act as an
independent and representative forum for the formulation of media
policy in Malawi and as a lobby organization on issues affecting the
media, such as a legal reform and the creation of an enabling financial
environment for media development. Further it would draw up a code
of ethics for journalists and appoint an independent complaints body
to uphold the code. It would also provide financial assistance for the
establishment and expansion of media organizations and act as a
channel for assistance for such organizations. The media council would
also establish a fund for freedom of expression cases and a mutual
liberal insurance policy (Hall, 1994, p 85).
It was further proposed that the media council in Malawi would
be constituted by a significant number of members of the media and
representatives from other sectors of society as argued below:
228
The membership might include a representative from every

newspaper, several from MBC and other broadcasting
organizations, several from each of the various media
associations-publishers and unions, the law society, the
trade union congress, the churches, a representative from
each political party represented in parliament, and so on.
This body would constitute the council and would
probably meet on an annual basis. It would have liberal
powers to co-opt new members (Hall, 1994, p. 85).
In spite of the important advantages to be gained from the

creation of a media council emphasized by Mike Hall at a media
conference in Blantyre in 19942, the idea of the council does not come
out clearly among the conferences resolutions. Instead, the conference
resolved to establish a co-coordinating Trust to lead media policy,
development and reform initiatives. The Trust would have sub-
committees comprising members of the constituent organizations in
areas such as broadcasting, training and ethics. The Trust would be
performing duties of a Broadcasting Reform Committee (which was
proposed to formulate new broadcasting policy for Malawi) and Media
Complaints Committee (MCC) (Hall, 1994).
Contrary to expectations, under the leadership of the Journalists
Association of Malawi, the Media Council of Malawi (MCM), rather
than the Trust, was established in November 1996. However, due to
some problems, which are explained below, the Media Council ceased
to function around 2001-2002 (Kruger, 2009, p. 30). Chitsulo and
Manganda (2011) observe that the first attempt to set up a media
council in Malawi faltered due to lack of ownership and commitment
by members as well as poor management (see also Venter, 2008, pp.
20-21). JAMA itself died naturally as a consequence of an internal
power struggle. Some sections of the media claim that JAMA is still
alive albeit on paper while others argue that no one can claim to be its
chairperson and no one knows where one can get its paper work 3. The
youngest offshoot of JAMA is the Journalists Union of Malawi (JUMA).
JUMA was established in 2007 with the core objective of promoting
and protecting labor rights of journalists. However, the mandate of
JAMA was broader than that of JUMA in that the former dealt with
labor issues, training issues, ethics and all aspects that make journalism
a profession. JAMA also led the moves toward establishment of the
Malawi Institute of Journalism, a training school for journalists 4.
229
In spite of the demise of the MCM, many recognized the

importance of a council and the role it ought to play in a democratic
society. There was general agreement that no profession or group of
professionals can function properly without a modus operandi and a
code of ethics regulated by a professional body This led to a meeting
for stakeholders convened in September 2005 at Kuchawe Inn-Zomba
by the National Media Institute of Southern Africa (NAMISA). The
primary objective of the meeting was to revive the Media Council.
Most of the participants at this meeting were media owners,
proprietors of media institutions including journalism teaching
institutes, highly regarded media practitioners and other key people in
the society who had been members of the Media Council before.
The meeting formed a task force that was asked to oversee the
resuscitation of the Media Council as a voluntary regulatory institution
of the operations of the media in Malawi. MCM was formally re-
constituted in February 2007 as a result of dedicated work done by the
interested stakeholders in the media industry. It was established as a
non-profit, non-political and self-regulating organization (Constitution
of the MCM, n.d.). This is what is known as self-imposed
accountability, based on voluntary acceptance of certain standards and
codes of behavior that govern membership of a professional body or
employment in a particular media organization (Tettey, 2006, p. 242).
The objectives in this study

To understand the forces which led to the establishment of a
media council at the advent of multiparty democracy in Malawi it is
important to take into consideration the context. Particularly important
were those then successfully controlling the media, who were
interested in strengthening the media at that time of change from the
dictatorship of Banda and the single-party politics to a more pluralistic
society. They wanted to see the media as a major factor in a more open
public sphere and promote a more open discussion in a time when the
media had a strong tendency to be extremely partisan. In spite of their
efforts, however, the media in Malawi have remained partisan. A major
problem has been that there has been very little capital investment in
the emergent press, and the state continues to be the principal
stakeholder (Hall, 1994). The Media Council of Malawi was conceived
as a major instrument to avoid this partisan media context. How well
the MCM has succeeded in this is the central question in this study.
230
Emergence of media councils

To evaluate the MCM it is helpful to review briefly the literature
on media councils and the criteria of a successful media council.
The emergence of media councils has been linked to the medias
desire to avert statutory regulations (Bussiek, 2008; Sawant, 2003)
which are often seen as deliberate attempts to muzzle freedom of the
media. There are of course several criticisms leveled against the media
which could attract the wrath of governments forcing it to exercise
control and regulation in the spirit of protecting public interest. For
example, the advent of democracy in many African countries brought
with it the enjoyment of some human rights and freedoms including
freedom of expression which unfortunately was often mistaken for
absolute freedom to say or write anything. In this context, the media
have been accused of being irresponsible and lacking discretion in their
reportage, being used for political propaganda, and serving parochial
interests (Tettey, 2006). This destroys their credibilityand the reliability
of their reporting in the eyes of the public especially in view of the
number of criticisms and complaints leveled against them.
According to Christians, et al (2009, p. 53), in response to the
swelling tide of public criticism, the press promised to carry on its own
in-house reforms under the principle of social responsibility. Some of
the measures include the establishment of media councils to deal with
complaints from the public instead of referring such cases to the courts
to mete out sanctions on those found guilty. It can be argued that
through self-regulation the media are trying to avoid the lawsuits
whose outcome could be more damaging to their business and
profession than the softer and sometimes not so legally binding
sanctions imposed by the media councils. However, this position has
been defended by Sawant (2003, p. 17) who argues that:
There are many ways in which the media can offend with-
out straying beyond the law. Ethical guidelines are peculiar
to each profession and are designed to prevent the abuse
and unmerited use of the power and privilege of the
profession. Not all morals of the society or ethics of a pro-
fession can further be incorporated in law. Courts cannot
decide issues of ethics, and it is beyond their jurisdiction to
enforce them.

231
Nonetheless, media accountability is a necessary component of

the democratic process as it provides checks and balances in the
practice of journalism and ensures that the media are not immune
from working within set guidelines. Media accountability is defined as
the process of compelling the media to conform to the standards of
society and holding them answerable to those standards (Tettey, 2006,
p. 233). Both public and private media institutions must recognize the
fact that they are working on behalf of and for the benefit of the
people, and they are the peoples trustees for that purpose (Sawant,
2003, p. 18; Christians et al, 2009), hence the need for them to be
accountable.
Theoretical context: Social Responsibility Theory

The issue of media accountability can best be understood within
McQuails (1987, pp. 117-118) social responsibility theory which
justifies societys expectation of high standards of performance on the
part of the media, and accountability of journalists not only to society
but to their employers and the market as well. Social responsibility
calls for the medias self-regulation within certain precepts or
established institutions like media councils. McQuail (2000, p. 186)
further argues that the main advantage of a developed public
responsibility frame include the fact that the need of society can be
expressed in a direct way by claims made on the media, to provide
for these needs. In addition, intrinsic to this frame is the idea of a
continuous interactive relationship between media and society.
According to Himelboim & Limor (2008, p. 240), it is in keeping
with the principle of social responsibility that the state is precluded
from intervening in media activity and content, while the media, in
turn, impose restrictions and limitations on themselves. These self-
imposed restrictions and limitations come in the form of professional
ethics or simply codes of ethics. The objectives of the codes of ethics are
enhancing the dignity, influence and reliability of the relevant
profession in the eyes of the public, serving as a kind of shield for
professionals and preventing the imposition of external supervision and
limitations on the field and its practitioners (Himelboim & Limor,
2008, p. 240). In media circles, the codes of conduct of journalists
associations provide guidelines for media practitioners and provide for
requisite sanctions for non-compliance (Tettey, 2006, p. 242).
232
Methodology in this study

This research followed a qualitative approach relying on multiple
data sources including (a) in-depth interviews with key informants,
i.e., media practitioners and researchers, editors of different media
houses, chairpersons of media associations and councils. The objective
was to get a multiplicity of views and opinions from media
practitioners themselves; (b) document reviews, i.e. newspapers, the
Communication Act, etc. The principal researchers reviewed
newspaper reports and articles dealing with the issue of media freedom
and the Media Council of Malawi.
The mandate of the Media Council of Malawi

The function of the Media Council of Malawi vis--vis its
contribution towards the quality and performance of the media should
be understood within the context of its secretariat and the permanent
committees through which it carries out its mandate as outlined in its
constitution. The Council has the following three permanent
committees: Ethics, Complaints and Disciplinary Committee;
Membership and Accreditation Committee; and Finance and Audit
Committee (MCM, n.d). Through these committees the Council is
expected to carry out the following objectives:
a. Uphold and maintain the freedom of the media in Malawi,

including the freedom of expression and the public right
to freely receive and impart information and opinion,
and to defend/protect the media from undue pressure
from any source;
b. Update, maintain and promote the Code of Ethics and
professional standards for media practitioners,
journalists and media organizations;
c. Assist in ensuring that proprietors, publishers, journalists,
broadcasters and other media stakeholders adhere to the
highest possible standards by strict compliance with the
Code of Ethics;
d. Provide alternative dispute resolution mechanism on
matters involving the media and the public.
e. Accredit local and foreign journalists in Malawi in
conjunction with the relevant government agency
f. Conduct professional development activities for the media
in Malawi.
233
g. Encourage an ongoing dialogue between the media,

government and the public through conferences,
seminars, symposia and other fora;
h. Maintain and promote the status of journalism as a
profession;
i. Promote public awareness of the Council through
publication of its activities and operations.
j. Promote and safeguard the interests of its members and the
public in all matters affecting the profession;
k. Establish and operate an audit bureau of circulation;
conduct research relevant to the media; provide
independent consultancy services to publishers,
broadcasters, media associations and relevant
organizations in the interest of developing an
independent and effective media;
l. Reviewing developments in the media.
m. Carry out any activities necessary and incidental to
achieving its objectives.
In view of the foregoing it is safe to assume that some of the

objectives outlined in the constitution fall under the role of the
secretariat while others are performed by the committees. The
objectives that fall under the secretariat include: a, f, g, i, j, k, l and m.
The Ethics, Complaints and Disciplinary Committee is informed by
objectives b, c and d. The Membership and Accreditation Committee
deals with objective e. This article, therefore, reviews how the council is
able to perform its oversight role through these organs. Currently, the
governing council of the MCM is apparently unable to meet, so it is
difficult to say just what committees are functioning.
The Secretariat
Kruger (2009) has rightly argued that the engine-room of any
council, as with any other organization, is an office with full-time
officials. The secretariat of the Media Council of Malawi is led by an
Executive Director, who is assisted by other members of staff, and is
responsible for the day-to-day running of the affairs of the Council and
is expected to deal with all correspondence and manage all records of
the Council. The Executive Director reports to the National Governing
Council and a Board of Trustees (MCM, n.d).
234
According to the Director, there are supposed to be five officers

in the secretariat: the director, a program officer, an accountant, a
secretary and an office assistant. Presently, there is only an executive
director, a secretary and an accountant, but there is no program officer.
Helping to set national media policy and serving as a lobby

organization
The Constitution of the Republic of Malawi, adopted at the
reintroduction of multiparty democracy in May 1995, provides citizens
with the right to freedom of expression and to report and publish
freely, and to be accorded the fullest possible facilities for access to
public information (GoM, 1995). The press shall have the right to
report and publish freely, within Malawi and abroad, and to be
accorded the fullest possible facilities for access to public information
(GoM, 1995). However, there are many cases in which the
constitutional provision of the right to freedom of expression and
access to information is limited by other statutes and the lack of an
Access to Information Law. For example, Kanyongolo (1994) identifies
a list of statutory provisions which can abrogate the exercise of press
freedom by prohibiting or unduly restricting the press in its search for
information.
Over the last few years a number of laws have been introduced in
Malawi that have restricted rather than enabled press freedom and
responsibility. These include an amendment to Section 46 of the Penal
Code empowering a political appointee of the President of the Republic
to censor media content in the name of public interest. The Media
Council of Malawi is therefore expected in the words of Hall (1994) to
act as an independent and representative forum for the formulation of
media policy in Malawi and as a advocacy organization on issues
affecting the media (including lobbying for the repeal of restrictive
laws). The role of the MCM in upholding freedom of the press is
visible in certain instances. For example, at the height of the debate of
the amendment of Section 46 of the Penal Code, the Media Council of
Malawi in conjunction with the Media Institute of Southern Africa
(MISA-Malawi) published media statements lobbying for the
government to repeal the amendment and reconsider its relationship
with the media. MCM, MISA-Malawi and other human rights
organizations held a series of press conferences condemning the laws.
However, all the efforts to have government repeal the laws fell on deaf
ears.
235
On 31 May 2012, however, the Malawi National Assembly voted

to repeal the media ban law. The leader of the house, introducing a bill
to repeal the law, said Section 46 of the Penal Code was perceived as an
unreasonable limitation to free publication, freedom of speech, and
freedom of the media. Ironically some of the architects and advocates
of the amendment voted for its repeal (Sonani, 2012). The foregoing
means that the bill to repeal Section 46 took into account the public
outcry regarding the law, including efforts by the council. However, it
is worth noting that the amendment followed a change in government
after the death of president Bingu wa Mutharika on 5 April 2012. The
change in government was more instrumental in the repeal process
rather than the efforts of the Council. This argument is supported by
the fact that the new government did not only reverse the media ban
law but also the Injunctions law5 and the change in the national flag. All
these were introduced by the previous government.
In general, MISA Malawi is much more visible in policy issues.
Presently MISA Malawi is involved in the push for the Access to
Information Law (ATI). When the Access to Information Law was
conceived in 2006, there was a joint effort between MISA Malawi and
the Media Council of Malawi to push for the ATI law. Since 2009,
however, the MCM has not been part of the leadership in this
campaign for the ATI. The driving force for the ATI law has been MISA
Malawi in collaboration with the Ministry of Information.
Training of journalists
Apart from carrying out advocacy programs MCM has partnered
with other institutions and NGOs to also carry out capacity building
activities for the media in areas of child rights, anti-corruption and
maternal health among others (Gondwe, 2012). The MCM has been
able to source funds to organize these training programs for journalists.
Some quarters have seen the direct involvement of the MCM in these
activities as a structural weakness arguing that MCM has departed
from its core activities6. The argument is that rather than monitoring
issues of standards and ethics in the media, MCM overstretches itself in
conducting capacity building initiatives such as training workshops
which could be left to trainers.
Ethics and professional conduct

In 2010, the Media Council of Malawi, in its attempt to be an
independent self regulatory media body, launched the Code of Ethics
236
and Professional Conduct as well as the Accreditation Policy and Press

Card Scheme. The code is intended to govern the conduct of
journalists and media house owners while accreditation is intended to
promote integrity and professionalism by setting apart those
recognized as journalists from the ones who only masquerade as such
(Malera, 2010).
The Media Council of Malawi is responsible for settling disputes
that erupt between members of the media and the general public
through processes of Alternative Dispute Resolution in which any civil
case registered with the courts is examined for determination on
whether or not to settle it through dialogue and negotiation. Media
managers have found this legal provision of out-of-court arbitration less
costly, fast, informal, friendly and flexible. While they bemoan that in
most cases media organizations incur costs for lawyers, mediation fees
and compensation, still they find the negotiations over levels of
compensation relatively accommodating and conducive to media
practice (Chikunkhuzeni, 2011, p. 67). Chitsulo and Manganda (2011)
have also alluded to the excessive costs posed by the law of defamation
whose application led to the folding up of newspapers such as The
Democrat and The Chronicle.
Procedures of launching a complaint

Any member of the public is free to submit a complaint to the
Council. One of the Councils main objectives is to promote and
safeguard the interests of its members and the public in all media
matters affecting the public, so if a member of the public feels the
media are not operating in line with the code of media ethics s/he has a
right to launch a complaint to Media Council of Malawi. Complaints
are made to the Executive Director of MCM either in person, or by
telephone. If the complaint is made against the Executive Director of
the MCM, or the Ethics, Complaints and Disciplinary Committee, it is
supposed to be lodged with the Chairperson of the Council. Where the
complaint is made against the Chairperson of MCM, it is immediately
referred to the committee without any attempts by the Executive
Director to resolve it. Once the executive Director has received a
complaint, he or she is supposed to transmit it to the respondent who
is expected to comment within fourteen days. The Executive Director
holds an informal discussion with the parties involved and a resolution
is made. If an agreement is not reached at this stage then it is referred
to the Ethics, Complaints and Disciplinary Committee (MCM, 2009).
237
Owing to a lack of proper documentation in the council

secretariat, it is not certain how many complaints have been presented
in a given year or over the years. A categorization of the types of
complaints would be helpful. From the few documented cases, one
gets the impression that the actual complaints received mostly border
on the invasion of privacy, malicious damage resulting from
unsubstantiated journalistic claims, failure to respect the right of reply
and journalistic misinformation. The typical cases target both media
houses and journalists, but few have targeted individual journalists.
The typical procedure in handling complaints has six steps:
1) An aggrieved party submits a complaint to the executive director
who transmits the complaint to the respondent who is expected to
comment within 14 days.
2)The executive director then holds discussions with both parties on an
informal basis with the hope of achieving speedy settlement.
3) The executive director then gives his or her opinion regarding the
resolution of the dispute.
4) If one or all of the parties are not agreeable to the resolution of the
executive director, then the complaint is referred to the Complaints
and Disciplinary Committee.
5) The chairperson of the committee will then set a date and venue for
the case to be heard and decided.
6) The committee with the executive director, then makes a decision as
what should be done by the media house.
There is not a complaints department as such, but the Executive
Director handles most of the complaints. If a case reaches the Ethics,
Complaints and Disciplinary Committee, then the six members of the
committee (if they are actually present) work with the case. From the
evaluation, it seems that in years past there were more complaints and
the committee was more active. The MCM activities seem to have
reduced the number of complaints, seemingly because the MCM was
putting pressure on the media houses. In recent years the staff seems
to be less active in handling complaints, and there seems to be less
contribution to resolving the problem on the part of the MCM.
While Kruger (2009, p. 33) observes that most councils act only
if they receive a complaint, there have been efforts made by MCM to
mediate on conflicts between the public and media organizations. The
regulatory body has also made attempts to mitigate conflicts between
some radio stations and the Malawi Communications Regulatory
Authority. MACRA is a government agency established under Part V
238
of the Malawi Communications Act (GoM,1998) to regulate the

provision of broadcasting in Malawi to, among other things, meet
demand for broadcasting services, to ensure the provision of regular
news services and programs on matters of public interest in Malawi; to
provide for the broadcast of programs in support of the democratic
process through civic education, promote the provision of a diverse
range of broadcasting services on a national and local level; to promote
the integrity and viability of public broadcasting services, and to ensure
equitable treatment of political parties and election of candidates by all
broadcasting licensees.
In 2008 the MCM mediated in a dispute between the state-
owned Malawi Broadcasting Corporation (MBC) and Television Malawi
(now merged with MBC) and the Malawi National Assembly over
refusal by the latter to approve and allocate funds for the former in
both 2007 and 2008 budgets. Apparently opposition political parties,
the Malawi Congress Party (MCP) and the United Democratic Front
(UDF) felt that MBC had failed in its mandate of being a public
broadcaster and instead had chosen to affiliate with the then ruling
Democratic Progressive Party (DPP) in pursuit of partisan interests.
MCM lobbied parliament, through the latters Media and Communi-
cation Committee, to fund the two institutions. Notwithstanding the
intervention and meetings held by MCM with officials from MBC and
TVM and members of the Media and Communications Committee of
the National Assembly, MBC and TVM ran for two consecutive years
without a budget. The foregoing implies that efforts of the council are
ignored by policy makers in certain cases.
The Media Council of Malawi has previously also investigated the
conduct of the MBC which is a public broadcaster. For example, the
Media Institute of Southern Africa (MISA-Malawi) once observed in its
complaint to the Council that the conduct of MBC was a catalyst for
media wars, a situation which needed to be avoided at all costs,
especially as the country drew closer to the general elections in 2009.
The MBC had alleged, in some of its editorial content, that journalists
from other media houses were being financed by the opposition party,
the United Democratic Front (UDF) to write negative stories about the
DPP government and write positive stories about the opposition.
MISA-Malawi therefore requested the Media Council to intervene as
MBCs conduct also bordered on issues of ethics. MCM confronted the
management of MBC with evidence on the issue. The Council was thus
able to stop MBC from broadcasting programs which it felt were
239
provocative in that MBC attacked fellow media practitioners without

substantiating their claims (Misa-Malawi, 2008). An example of these
provocative programs includes Makiyolobasi, a radio cartoon program
broadcast on MBC radio critical of key opposition figures.
Media monitoring
Notable in the performance of MCM, therefore, is the fact that it
does not exclusively rely on complaints from the public but also
conducts its own investigations through its media monitoring program.
In its 2008 annual report the MCM (MCM, 2008) observes that 29% of
the complaints that it had received between July 2007 and July 2008
were from the public while 71% emanated from the Councils own
monitoring. The Council had been able to solicit apologies and
retractions in cases of successful mediation. Apart from the statistics
contained in the inaugural report of the revived MCM for 2007 to 2008
there are no records of complaints and cases covering 2009 to date
emanating from failure to monitor the media for ethical misconduct.
The Council, however, in its inaugural year had been able to secure
retractions and apologies for ethical misconduct and
misrepresentations for both cases reported by the public and issues
arising from the Councils own monitoring. Presently the Council does
not do its own monitoring due to capacity limitations as will be noted
later, hence most of the cases it arbitrates are based on complaints
lodged by members of the public8. Some analysts recommend that a
council should wait for a complaint to be launched before it acts,
arguing that doing the contrary would be inappropriate for a council
to be both judge and prosecutor (Kruger, 2009, p. 33).
Accreditation
MCM has also embarked on accrediting local and foreign
journalists in Malawi in conjunction with the relevant government
Agency such as the Ministry of Information. The accreditation process
commenced in earnest in 2010 with national sensitization of media
practitioners and stakeholders on the procedures of the process. Many
journalists applied for accreditation and have been given press cards.
However, for two years now the Membership and Accreditation
Committee has not met owing to lack of resources. This has left the
accreditation process hanging in balance 9. In July 2012, the
Government of the Republic of Malawi was supposed to host a high
profile African Union (AU) meeting which was to be attended by
240
delegates from all of Africa including heads of state. This attracted the
interest of many local and foreign journalists who needed accreditation
to cover the proceeding of the meeting.
Instead of the Media Council of Malawi, it was the African Union
Southern African Regional Office (AU SARO) based in Lilongwe in
conjunction with with the Malawi Ministry of Information and Civic
E d u c a t i o n t h a t a
10
. The event did not
c c r e d i t e d j o u r n a l i s t s f o r t h e e v e n t
take place in Malawi, though, as a result of disagreements as to

whether President Omar Al Bashir of Sudan would be allowed to
attend the Lilongwe meeting due to a warrant of arrest issued on him
by the International Court of Justice (ICJ) in Hague. The government of
Malawi had indicated that it would arrest Al Bashir. There has been a
proposal within the Membership and Accreditation Committee to meet
virtually online, in view of limited funds. Again, that is subject to
approval of the Board of Trustees which has also not been able to
convene and decide on such critical issues for a period of more than
two years now11.
There have been mixed views on the issue of accrediting
journalists by MCM, which according to Kruger (2009, p. 42) is ill-
advised. He argues that although a professional register run by the
media themselves is marginally better than one administered by the
state, it remains out of step with international standards and precedent
(Kruger, 2009, p. 42; see also Bussiek, 2008, p. 6). He further warns that
this could make MCM a journalists police (Kruger, 2009, p. 42).
The limitations due to lack of funding

The MCM has no publications and in recent years is unable even
to produce annual reports of its activities. Virtually the only
publications of the MCM are the code of ethics it devised, the
complaints procedures and Accreditation Policy and Procedures. The
MCM does not attempt to give awards to outstanding journalistic
activities. Rather, awards are given through the Media Institute of
Southern Africa (MISA Malawi). MISA Malawi also has a type of
annual celebration of World Press Freedom Day on May 3 every year.
Financing MCM
The Media Council of Malawi estimates its potential membership
at 43 (MCM, n.d). These potential members include newspapers, radio
stations, television stations, media production companies and
journalism training institutions. The membership is in four categories
241
including: community radios with hardly any resources and are

voluntary, not-for-profit organizations, commercial organizations that
are smaller in their size and relatively large commercial media
organizations. These organizations pay annual subscription fees.
Individuals are not eligible to join; they can only do so through an
institutional organization.
Thus, media houses, journalists training institutions, professional
journalists and press clubs form the membership of MCM (MCM,
n.d). Members of the Media Council of Malawi pay annual
subscription fees. Community radio stations pay 25,000 Malawi
Kwacha (83 US Dollars). Not-for-profit institutions pay 50,000 Malawi
Kwacha (166 US Dollars), commercial institutions that are smaller in
size pay 100,000 Malawi Kwacha (332 US Dollars) and commercial
institutions that are large pay 200 000 Kwacha (664 US Dollars). Even
though potential membership rests at 43, the number of institutions
which ought to be affiliated to MCM could be higher considering that
as of September 2012, the Malawi Communications Regulatory
Authority had licensed 47 radio and television operators12. It is worthy
of notice, though, that in practice not all listed institutions actually
subscribe annually. The MCM observes that it has an average of 20-25
active subscribers while an estimated 15 institutions avail themselves to
the activities of the Council when there is a specific activity from which
they see immediate benefits. MCM observes also that among the
potential subscribers there is a third group that does not really care
about the council and its mandate 13.
Despite the fact that core funding for the operations of the
secretariat has been a challenge, as will be argued later, MCM has
continued to attract support towards specific program delivery
activities. For example, UNICEF has supported MCM with a three-year
grant towards child-rights reporting (up to 2012) and MCM signed
another agreement towards similar initiatives covering 2012 and
beyond. The National Aids Commission (NAC) also approved a one-
year grant agreement on HIV and AIDS programming support for
media houses. In 2011 MCM partnered with the Danish organization
(International Media Support-IMS) for training journalists in conflict-
sensitive reporting. MCM has also engaged with PANOS in a maternal
health capacity building project for media houses (Gondwe, 2012). In
addition, in 2011 MCM signed a memorandum of understanding with
the Anti-Corruption Bureau (ACB) for setting up anti-corruption
capacity building programming with media houses.
242
Challenges facing MCM

The mother of all the problems facing MCM is financing. While a
membership subscription from institutional members has gone a long
way towards meeting some of the operational costs, it has not been
sufficient to keep the secretariat running. The challenge that is facing
the secretariat including that of other MCM programs is that core
funding from the British High Commission to support the formative
three-year strategic plan did not get renewed at the expiration of the
agreed period from 2007 to 2010. The council does not have a fixed
source of funding. As a result, MCM has a high labor turnover. For,
instance, in a period of five years (2007 to date) it has changed
executive directors four times. Currently, the most active member of
staff is the executive director. For the MCM secretariat to function
properly it requires about five officers including the executive director,
a program officer, a finance officer, administrative officer and an office
assistant. Presently the secretariat has only three officers and is unable
to operate normally. It has not been able to maintain a program officer
to carry out projects. As a result the Executive Director has to combine
his roles alongside those of a program officer 14.
Another challenge facing MCM is limited awareness among
members of the general public regarding the functions of the council.
Chikunkhuzeni (2012, p. 67) observes that in 2011 defamation court
cases against the media were numerous. In the past such cases have
been easily resolved through the Councils Alternative Dispute
Resolution Process. The foregoing points to a general lack of awareness
of the existence of the council and a growing mistrust in the
effectiveness and readiness of the council to handle disputes 15 . Owing
to a lack of financial resources the Media Council of Malawi has not
been able to implement publicity activities as originally planned16.
Journalists expressed dissatisfaction with the Council arguing that the
Council started very strongly but has been weakening over years to the
point of extinction. This view is supported by the formation of a new
group, the Association of Media Owners (AMO) comprising the private
sector media institutions. The AMO aims to speak with a united voice
in order to play a greater role in the transformation of the country. The
AMO has several objectives, among them to act as a catalyst for change
in promoting social transformation for economic growth and
democracy in Malawi. It will also ensure accountability of the media to
the public including its common goal of protecting the public. The
AMO will also be protecting its members, provide a forum for business
243
issues for media organizations, act as a lobbying platform for media

organizations, support media watchdog organizations such as the
Media Council of Malawi and the Malawi chapter of the Media
Institute of Southern Africa, NAMISA, and ensure sustainability of the
media in Malawi.
While AMO says one of its earliest tasks will be to strengthen and
revive the Media Council of Malawi, whose main task is to provide self-
regulation in the promotion of media ethics in Malawi, the
establishment of the former is in essence an important threat to the
sustainability of the council considering that it draws its membership
from the Council, further dividing the attention of the industry. Some
of the objectives of AMO are similar to those of the Council, for
example, ensuring accountability of the media. Some journalists
interviewed felt that membership with the National Media Institute of
Southern Africa (MISA-Malawi) was more fulfilling and beneficial than
association with the Media Council of Malawi 17.
With regard to membership and accreditation the challenge that
faces MCM is that membership is not mandatory18. Institutions that
join MCM do so at their own preference. Hence, membership tends
to fall into a group that is active and subscribes annually, others that
participate only in activities where they see direct benefits and those
who do not care about the existence of the Council at all. The same
applies to accreditation. While the accreditation process has halted
owing to lack of financial resources, MCM cannot force individual
journalists to get accredited. Journalists pay 2500 Malawi Kwacha (8
US Dollars). Consequently, some journalists have not applied for
accreditation since they know that even if they are not accredited by
the Council they can still practice as journalists. Their argument is why
should they pay for accreditation when they can practice their trade
even without recognition by the Council19.
Conclusion
The foregoing discussion has attested to the need for the media in
Malawi to regulate itself. While efforts to resuscitate the Media Council
of Malawi bore fruit in its formative years it is obvious that its
sustainability remains in balance. Efforts should be made to reorganize
the Council to make a meaningful contribution to media regulation in
the current process of media development in Malawi. The Council also
needs to raise awareness of its potential contribution so that many
members of the public become interested in its mandate because at
244
present people know the existence of the council but not the
importance of its mandate. This problem, though not peculiar to
Malawi, discourages interest in membership. The problem is
compounded by the establishment of another body, the Association of
Media Owners (AMO) whose objectives are similar to those of MCM.
The continued disregard of MCMs concerns by government on
matters constraining media freedom makes the relationship between
the two very tense and does not encourage membership in or
cooperation with the Council. Media Houses and practitioners need to
make concerted efforts that MCM be viable and defend it against all
threats affecting its operations and existence. Otherwise the good job
done by MCM remains unrecognized and unknown to many, and
those that have benefited from the Council are doing little to promote
its survival.
(Footnotes)
1
Chitsulo and Manganda (2011) suggest that independent was then understood to
mean media houses that were not linked to government.
2
Three months after Malawians voted in the presidential and general elections on 17
May 1994, the International Federation of Journalists convened a conference in Blantyre
to critically evaluate the role of the media in Malawi and how it could be strengthened
to better play its role in building a democratic society.
The conference attracted 60 delegates- publishers, journalists, broadcasters, lawyers,
academics, human rights activists and other civil society representatives.
3
This is based on interviews with a selection of media practitioners who participated in
the formation of the Journalists Association of Malawi, the Journalists Union of Malawi
and the original Media Council of Malawi and the current Media Council of Malawi
4
Interview with one of the first trainers at the Malawi Institute of Journalism(MIJ) who
is also a former member of the Journalists Association of Malawi (JAMA). This
information was confirmed by the Journalists Union of Malawi.
5
The Injunctions Law amended in 2011 ordered courts not to grant ex-parte injunctions
against government or public officers. Where an inter-partes application is made, the
court shall hear the application within three days from the date of the application and
the evidence in support of the application were served on the Attorney General.
Members of the general public argued that the law was unconstitutional as it stood to
deny citizens their right to instant relief when their rights are trampled on.

245
6
Based on an interview with a veteran media practitioner who is also a media scholar.
This view is also corroborated by one of the journalists working for the Malawi
Broadcasting Corporation (MBC) who looks at MCM involvement in these activities as
a survival strategy in view of limited funding towards the functioning of the secretariat.
7
This section is based on a letter written by the then Media Institute of Southern Africa
(MISA) Malawi Chapter National Director Innocent Chitosi to the Executive Director of
the Media Council of Malawi on 6th June 2008 regarding the conduct of the Malawi
Broadcasting Corporation (MBC).
8
Based on an interview with the Executive Director of the Media Council of Malawi Mr.
Valesi Machila on 28 September 2012.
9
Based on interviews with Members of the Membership and Accreditation Committee.
10
Based on an interview with a member of the Membership and Accreditation Committee
11
This section is based on an interview with a member of the Membership and
Accreditation Committee. This was also corroborated by a member of the board of
trustees.
12
This is based on a list obtained from the Malawi Communications Regulatory
Authority (MACRA) in September 2012.
13
This information is based on an interview with the Executive Director of MCM, Mr.
Vales Machila conducted on 28 September 2012.
14
Based on an interview with the Chairperson of MCM Mr. Vales Machila on 28
September 2012.
15
This argument is based on random interviews with members of the public who were
asked if they knew about the existence of MCM and its mandate. The impression that
one gets is that the general public is not clear on the mandate of the Council.
The Executive Director of MCM agrees that there is need to sensitize the public on the
mandate of MCM.
16
Interview with the Chairperson of MCM Mr. Vales Machila on 28 September 2012.
17
This view is also shared by the Journalists Union of Malawi which felt the Media
Council of Malawi was reliable at its beginnings. The Journalists Union of Malawi
views a strong MCM as an important partner in the struggle for a vibrant media.
18
September 2012.
19
September 2012.
246
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248
Assessment of Nigerian Press Council
in regulating journalism practice
By Nicholas S. Iwokwagh and Moses I. Akurega
Abstract
This article assesses the activities of the Nigerian Press Council in the
regulation of journalism practice in Nigeria and the extent to which the Nigerian
Press Council has ensured that journalists maintain professional ethics in
the discharge of their duties. Findings show that the Nigerian Press Council
does provide journalistic instruction but most observers feel it has has had
relatively littleinfluence on the practice of journalism in Nigeria. The
ineffectiveness of the Council stems largely stems from its lack of competent
personnel and lack of funding but more fundamentally a Lagos High Court
pronouncement in 2010, which declared it an illegal entity.
Key words: Nigeria, print media, press council, media regulation,

journalism ethics
Introduction:
Journalists play crucial roles in society as purveyors of information.
They act as watchdogs of society by calling attention to issues that
portend danger to the society; this is in addition to their task of
highlighting issues that are germane to development and social
transformation. In essence, the relevance of journalists to society cannot
be overstated because they disseminate information that is of central
importance to the growth and continuous survival of society.
Akinfeleye (2003) notes that information is especially necessary for
effective governance and administration. Further, he observes that
Lack of information or misuse of information or hoarding of
information will be counter productive in government and/or
Nicholas Iwokwagh is Senior Lecturer and Head of Department of Information and Media
Technology, Federal University of Technology, Minna, Nigeria. His recent publications
include The 2011 presidential election in Nigeria: The media, opposition politics and social
responsibility, Lambert Academic Publishers and with Herbert W.Batta, Newspaper coverage
of corruption issues in Nigeria, African Communication Research, 4, 323-342.
Moses Akurega is a PhD student in Mass Communication, Department of Mass
Communication, University of Uyo, Akwa Ibom State, Nigeria.

249
nicholas S. iwokwagh and Moses I. Akurega
administration (p.1). This presupposes that apart from being a source

of power, information can serve as a catalyst, a propeller or an
accelerator of meaningful development.
Journalism thus demands a high degree of public trust. The
observance of the highest professional and ethical standard as well as a
healthy regard for the public interest is a moral imperative for
journalists working in the news media. This explains why the Nigerian
Press Council (http://www.presscouncil.gov.na/code-of-Ethics-for-
nigerian-journalists) holds that truth is the cornerstone of journalism
and every journalist should strive diligently to ascertain the truth of
every event.
Conscious of the responsibilities and duties of journalists as sources
of information, the Nigerian Union of Journalists (NUJ) has prescribed
a code of ethics for the practice of journalism in Nigeria. Elements of
the Code include:
Trustfulness
Accuracy
Fairness
Confidentiality
Incorruptibility
Truthfulness:
Undoubtedly the most important ethical principle of journalism is
truthfulness. As stated earlier, journalism can only endure and survive
if it enjoys a high degree of trust. This can only happen when the
practice is hinged on truthfulness. This means journalists should write
and report only the objective truth. Affirming this view, Ganiyu (2004)
argues that journalists allegiance should be to the truth and not the
sources of their stories or even their institutional background.
Accuracy:
Like truthfulness, accuracy is fundamental to the practice of
journalism because it enhances the level of trust the public will have for
a medium. Accuracy means correctness of facts in news reports. In
other words, accuracy demands that references to age, date, name and
quotation in news reports must be factual and precise presentation of
verifiable facts (Ciboh & Iyorkyaa, 2004, p. 54). According to these
scholars, journalists should take the trouble to check every name, title,
date, spellings and fact to ensure that they are accurate.
250
assessment of nigerian press council in regulating journalism practice
Fairness:
Fairness operates in an atmosphere that is devoid of bias. Put
differently, fairness means taking a neutral stand on parties in reporting
disputes, issues or events. This explains why Ciboh and Iyorkyaa
(2004) warn against convicting people in journalistic reports or
selecting information in such a way as to portray a foregone conclusion.
Impartiality:
This demands that journalists should not take sides in an issue they are
reporting by including their views or opinions in the report.
Decency:
Decency measures the standard of responsible behavior in the
society. There are rules that guide public morality in every society
which the media should not violate so as not to corrupt societal
morality. Ganiyu (2004) For example, observes that the publication of
nude people in photographs or the transmission of sexual intercourse
on television is against the ethics of decency and should not be engaged
in by the media.
Confidentiality:
Journalism practice entails jealously guarding the sources of
information. In other words, journalists are bound by professional
ethics which forbids them from disclosing their sources of information
even under duress (Ganiyu, 2004). In cases that have to do with
corruption and/or crime, most sources of information would not want
to be identified. Journalists are therefore expected to shield such
sources from danger.
Incorruptibility: Journalism demands that the

practitioners be upright, live above board, and never
succumb to bribery and corruption. In this regard,
journalists have been admonished to never receive
gratification in order to cover or publish an event; rather,
that public interest should, at all times dictate the
conduct of journalists (Ganiyu, 2004).
Origins of the Nigerian Press Council

The need to enforce, and ensure strict adherence to the provisions of
the code of ethics by journalists led to the establishment of the Nigerian
Press Council (NPC). The Council is charged inter alia with the
responsibility of monitoring the activities of the media through content

251
analysis and ensuring that the areas of conflict between journalists and
society are minimized. The objective of this paper therefore is to assess
the performance of the Council in regulating journalism practice in
Nigeria.
Historical Background of the Council

The Nigerian Press Council has an interesting but checkered history.
According to the Nigerian Press Council (1998), attempts at
establishing this self regulatory body date back to the early 1970s with
the setting up of a commission (named the Ekineh Commission after a
distinguished Nigerian attorney) by the General Yakubu Gowons
regime. The commission had the mandate to study the prospects for
the future of the Nigerian media. However, findings of the Ekineh
Commission were not made public so it failed to achieve the aim for
which it was set up and did not lead to a regulatory body. Attempts
were again made in 1988 via promulgation of the Nigerian Media
Decree No. 59 of 1988 to put in place a regulatory body to monitor the
practice of journalism in Nigeria. However, this attempt, like the first,
was aborted largely because journalists were apprehensive of the
seemingly totalitarian powers the Decree conferred on the Council
(Nigerian Press Council, 1998).
Omole (2000) observes that some provisions of the Decree were
clearly objectionable. The questionable provisions, he argued,
authorized the government to appoint the majority of the members of
the Council. This trend, Omole explained, prompted the Nigerian Press
Organization (NPO) to reject these provisions outright and by
extension, the Council itself. He recounts that the Nigerian press
rejected both the Nigerian Press Council Decree No. 30 of 1978, which
first established the Press Council and the Nigerian Media Council
Decree No. 59 of 1988 (p.30).
Adducing reasons for the rejection, Duyile (1989) argued that the
NPO would not have anything to do with the Council because of its
pro-government composition. Okunna (2003) confirmed the pro-
government composition of the Council, arguing that out of the
fifteen members of the councils board; as many as eight would be
directly and solely appointed by the government (p. 123). The
government-appointed members included the chairman, two
representatives of educational institutions where journalists are trained,
three persons representing the general public, one of whom should be
a woman, and two representatives of the government of the federation.
252
An assessment of nigerian press council in regulating journalism practice
Futhermore, it has been argued that of the remaining seven

members made up of six mass media professionals and one member of
the Nigerian Bar Association, the government would still appoint all of
them, even after they have been elected or nominated by their
professional bodies (Okunna, 2003, p. 125). The nature and character
of the composition of the Council therefore led to the conclusion that
the Nigerian Press Council cannot be regarded as a self-regulating
mechanism in journalism.
There is also the position that the current statute - the Nigerian Press
Council Act No. 85 (as amended in Act 60 of 1999) is more or less a
consensus Act arising from hard bargaining between government and
the Nigerian Press Organisation (NPO), an umbrella body for the major
stakeholders in the industry (Akinfeleye, 2000). The stakeholders have
been identified as the Nigerian Union of Journalists (NUJ); the Nigerian
Guild of Editors (NGE); and the Newspaper Proprietors Association of
Nigeria (NPAN). The Nigerian Press Council (NPC) is therefore a
parastatal established by Decree N0. 85 of 1992, and the Nigerian Press
Council Act No. 85 (as amended in Act 60 of 1999) to ensure the
maintenance of high professional standards for the Nigerian Press.
Objectives of the Council

The Nigerian Press Council has, as its primary objective, the
regulation of journalism practice in Nigeria. More specifically, the
Council was established to act as a buffer between the media and the
public. Accordingly, it has been acknowledged that the Council has the
mandate of ensuring high ethical and professional standards in the
media; enquiring into complaints about the press and conduct of
individuals or organizations of the press; monitoring the activities of
the press with a view to ensuring compliance with the code of profes-
sional and ethical conduct; receiving applications from and document-
ing the print media, as well as monitoring their perform-ances to
ensure that owners and publishers comply with the terms of mission
statements and objectives in liaison with the Newspaper Proprietors
Association of Nigeria (http://ww.mandate+of+council+of+Nigerian&gov).
Other objectives of the Council include research on contemporary
press development; updating press documentation; reviewing
developments likely to restrict the flow of information, and advising on
measures aimed at remedying such developments. Others include
ensuring the protection of the rights and privileges of journalists in the
lawful performance of their duties, and fostering the achievement and
253
maintenance of high professional standards by the Nigerian press. The

Council also has the mandate of reviewing media laws, policies and
programs, or developments perceived as hostile to the operations of the
press, as well as advising on possible remedies.
Thus, the protection of the rights and privileges of Nigerian
journalists is an integral component of the Press Councils functions.
However, as laudable and plausible as these objectives seem, operations
of the Council have been bedeviled by many challenges which have
rendered its operations ineffective.
Challenges of the Council

To many discerning minds, the Nigerian Press Council was dead
from conception. Banjoko (2012, p. 1) for instance, remarks that long
before a Federal High Court sitting in Lagos pronounced the Nigerian
Press Council an illegal entity, the body had been moribund especially
as nobody took any serious matter to it for attribution. One major
challenge that is confronting the Council is the question of its
constitutionality. Indeed, Decree 85 of 1992 which set up the Council is
seen as oppressive, overbearing and grossly incompatible with civilized
standards of society (Banjoko, 2012). He cites Justice Liman who, in a
court verdict, declared the Council unconstitutional and null and void,
observing that sections of the Nigerian Press Council Act constituted a
huge bulwark against the full expression of opinions, ideas and views
whether by the individual journalists or by the press and, thus,
constituted a violation of the rights guaranteed under Section 39 of the
1999 Nigerian Constitution.
Another challenge with which the Council is grappling is the
antagonism and severe criticism of media professionals particularly for
its obnoxious provisions, and the constitution of the membership of
the board. According to mediaethicsorganisation.com (2012, p. 2) the
Nigerian Press Council Decree had been lampooned by many
professionals particularly for its obnoxious provisions and those who
were recommended to constitute its board members.
Another challenge that constitutes a stumbling block to the success
of the Council is the precedence set by similar councils in other parts of
the world. According to mediaethicsorganisation.com, the establishment
of similar organizations in other countries had faced stiff opposition. It
cites the examples of Sri Lanka where the government, in 1964
(through the Council), introduced a law aimed at taking over one of
the three major newspaper groups, a move that resulted in a
254
nationwide agitation against the government leading to the dissolution

of parliament. India is also reported as having had a similar experience
in September, 1964. Incidents such as these caused concerns regarding
the operations of the Council in Nigeria.
There has also been the genuine fear that the traditional right of
journalists to protect their sources of information would be
compromised. This, Banjoko (2012) observed, must have informed
Justice Limans view that the Press Council Act was most praetorian as
it has the potential to restrict the expression of opinion and stall the
growth and development of ideas that have universally characterized
the development of inhabitants (p. 2) . In other words, Justice Liman
appears to be saying that responsive press councils should not only
provide for individuals to articulate their views and ideas, but also to
express them, and impart them in the freest atmosphere, while
ensuring that the diffusion of such views and opinions is achieved.
In an interview (July 27, 2012) with the researchers, Shuaibu
Usman Leman, National Secretary of the Nigeria Union of Journalists
(NUJ) asserted that the most daunting challenge the Nigerian Press
Council has been faced with is the rift in the ranks of the stakeholders
at whose instance the Council was established in the first place. These
stakeholders, according to him are the Nigerian Union of Journalists
(NUJ), the Newspaper Proprietors Association of Nigeria (NPAN) and
Nigerian Guild of Editors (NGE).
Leman observed that while the NUJ was not totally opposed to the
spirit and mandate of the Council, it was not comfortable with the
provision that avails the government the exclusive right to appoint the
chairman and a greater percentage of the board members of the
Council. He argued that the Union (NUJ) preferred a situation where
the major stakeholders would have a free hand to nominate three
professional colleagues from whom the government will choose one as
the chairman, while the Executive Secretary of the Council will be
elected by the members.
Unfortunately, the insistence of the government on determining the
composition of the Council generated strong antagonism against the
Council among the professionals whose activities it was set up to
regulate. This eventually led to the legal process instituted by the
Nigerian Guild of Editors (NGE) and Newspaper Proprietors
Association of Nigeria (NPAN) the judgment, which subsequently
nullified 17 of the 22 clauses in the NPC Act. It is therefore significant
that the judgment has rendered the Council relatively inactive, a state
255
which Leman admits, is seriously threatening the Councils capacity to

carry out its mandate.
In another interview (July 26, 2012), Bayo Atoyebi, Executive
Secretary of the Nigerian Press Council, confirmed Lawans stand,
arguing that the Council is seriously challenged by the apprehension of
the Nigerian Guild of Editors and Newspaper Proprietors Association of
Nigeria who express the fear that amendments in the Act establishing
the Council in 1999 aimed at giving the government the leverage to
control, censor and muzzle the press. He particularly decried the
nullification of 17 of the 22 clauses in the NPC Act by a Lagos Federal
High Court in February, 2010 saying this development has been
hindering the Council from carrying out its full mandate.
It is therefore clear from the foregoing that the Nigerian Press
Council (NPC) is facing serious challenges in the pursuit of its
mandate. The question then is to what extent has the Council fulfilled
its purpose in the face of these daunting challenges? Put differently,
how well has the Nigerian Press Council carried out its work of
regulating journalism practice in Nigeria?
Assessment of NPC in the Regulation of Journalism Practice

With the avalanche of challenges confronting the Nigerian Press
Council, the performance of its mandate of regulating journalism
practice in Nigeria is now a matter of conjecture. For instance, Zoe
Attat (Interview, July 31, 2012), a Senior Correspondent with
Leadership Newspaper Group in Abuja asserts that the NPC has failed in
its broad objective of promoting the standard of journalism practice in
Nigeria because it has not been able to rein-in some newspapers that
depict indecency in their publications. She particularly cites the
example of weekend newspapers that display pictures of scantily
dressed women on their front pages every weekend. This, according to
her, is a violation of the code of journalism ethics which expects
decency.
Shuaibu Usman Leman, National Secretary, NUJ, shares Attats
covictions (Interview, July 27, 2012). According to him, the NPC has
failed in correcting the wrongs it was set up to correct. He attributes
this failure to the challenges facing it especially the court judgment
standing against it. To this end, he remarked that the judgment has
tied the hands of the Council thus preventing it from carrying out its
mandate.
256
Similarly, Kate Agbo (Interview, July 31, 2012), a correspondent

with one of the leading newspapers in Abuja and Treasurer of the NUJ,
Abuja Council and active in assessing the activities of NPC questions
the Council. In an interview she concluded that expectations should
not be high with regards to the capacity of the Council to fulfill its
mandate, particularly in the face of the continuing antagonism between
the Council and its key stakeholders. Her reasoning was anchored on
the Biblical aphorism that a house divided against itself cannot stand.
The picture was not radically different from the standpoint of
newspaper editors. For instance, in assessing the NPC with regard to
the fulfillment of its mandate, Ibanga Isine, a veteran journalist and
Editor of Leadership Government scored the Council below average. His
argument is that the council was dead on arrival. Buttressing his
claim, Isine holds that The Nigerian Press Council was not conceived
to succeed. Whatever it claims to have achieved has not impacted on
the performance of journalism practice in Nigeria.
However, in assessing the performance of the Council so far, the
Executive Secretary of the Council, Bayo Atoyebi, sees things
differently. According to him, it is untrue and therefore unfair to say
that the Council has failed to carry out its mandate. While
acknowledging the difficulties faced by the Council, particularly the
Lagos Federal High Court judgment of February 25, 2010 that nullified
17 of the 22 clauses in its Act, Atoyebi said the Council has been doing
its best to build the capacity of practicing journalists with the aim of
upgrading the standard of the profession in Nigeria. He particularly
cited the training the NPC held for journalists in the run-up to the 2011
general elections on the art of election coverage, noting that the training
was responsible for the enviable standard journalists attained in the
coverage of the elections.
On how well the Council has fulfilled its mandate of monitoring
newspaper contents, Atoyebi said rather than policing and punishing
erring journalists and their newspapers, the Council operates with the
advocacy approach where newspapers that publish materials that violate
the code of journalism ethics are admonished and asked to desist from
such publications. This policy, he observes, is working well as most
newspapers are humble enough to acknowledge their faults and take
corrections. Another area, in which the Council has succeeded,
according to Atoyebi, is in the reduction of the obstacles hitherto
placed in the way of journalists in the performance of their duties by
individuals, government or organizations. He stressed that through the
257
series of training workshops organized by the Council, journalists have

been empowered to enforce their right to information as guaranteed by
the Freedom of Information Act. This development, he said has
reduced the spate of speculative journalism occasioned by the dearth of
factual information by overzealous government officials who hoard
information from journalists on the pretext of oath of secrecy.
Conclusion
Findings show that it has been extremely difficult for the Nigerian
Press Council to enforce a code of ethics on account of the opposition
which it is facing. For instance, the question of the constitutionality of
the Council poses a major challenge, first to its legitimacy, then to the
nature and character of its operations. A further challenge is the Lagos
High Court judgment of February 25, 2010, which nullified 17 out of
the 22 clauses of the enabling statute (Decree 85 of 1992) and has
prevented the Council from carrying out its intended functions.
A major problem is the continuing antagonism between the Council
and key stakeholders. In the view of many of those interviewed, the
Council has failed to prosecute erring professionals and has failed to
promote ethical standards of decency..
Although the Executive Secretary of the Council, Bayo Atoyibi, has
enumerated a few achievements of the Council, especially the training
courses in journalistic capacity building and advocacy, this does not
seem to have had a significant impact on journalism practice in Nigeria.
References
Akinfeleye, A. (2000). History of the Nigerian press council. Lagos:
Nigerian Press Council.
Akinfeleye, A. (2003). Fourth estate of the realm or fourth estate of the
wreck: Imperative of social responsibility of the press. Lagos:
University of Lagos Press.
Banjoko, D. (2012). Abrogation of Nigerian Press Council Act: the
Challenges. Retrieved fromhttp://
www.mediaethicsorganisation.com on July 10.
Bayo, A. (2012) Oral interview, July 27th.
Ciboh, R. & Iyorkyaa, T. (2004). News writing. Makurdi: Aboki
Publishers.
Ganiyu, M. (2004). The reporters companion. Ibadan: Embee Books.
258
Nigerian Press Council (2012). Code of ethics for Nigerian Journalists.

Retrieved from http://www.presscoucil.gov.ng/code-of-ethics-
for-nigerian-journalists on July 10th.
Nigerian Press Council (2012). The Nigerian press council mandate.
Retrieved from http://www.mandate of+council+of+Nigeria&gov
on July 10th
Ibanga, Isine (2012) Oral interview, August 3rd.
Kate Agbo (2012) Oral interview, July 31st.
Nigerian Press Council (1998). Ethics in Nigerian journalism. Abuja:
Nigerian Press Council.
Okunna, S. (2003). Ethics of mass communication. Enugu: New
Generation Books.
Omole, G. (2000). The Nigerian press council, 1992-1998. In R.
Akinfeleye, G. Omole, & O. Omang (Eds.), History of Nigerian
press council. Abuja: Nigerian Press Council.
Shuaibu Usman Leman (2012). Oral interview, July 27th.
Zoe Attat (2012) Oral interview, July 31st.

259
260
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publication

New media in Kenya: Time for regulation?
Grace Mutung'u
13 Sep 2012
Summary
New Media in Kenya: Time for Regulation? considers the Kenyan governments
legislative and policy responses to the challenges of new media online. Access to
the internet in Kenya has developed significantly over recent years. However,
concerns about the internets contribution to the conflict and divisions of the
post-election violence has led to the monitoring of online content. Grace
summarises the principal national laws that regulate and restrict freedom of
expression in Kenya. She also identifies the key future challenges as internet
identity, content integrity, privacy, data protection, the role of internet
intermediaries and copyright protection. Grace highlights the international laws
to which Kenya is bound and concludes her article with a concise set of
recommendations for protecting and respecting rights to freedom of expression
and information in Kenya.
I. Introduction
New Media is defined principally as the revolution media that allows

interactivity between the producers of content and consumers. It has defied
traditional models of media in many senses. For instance, producers of content
are also consumers, hence the term prosumers.
Kenya has over 17 million Internet users, with a significant number of these
being active in the new media space.[1] There is an active online community in
popular social networking sites, Facebook and Twitter. While content generated
in these sites by Kenyans varies from random babble, conversation, pass along
value, self promotion to spam and news[2], these sites provide a platform for
debate on topical issues and especially politics. For example, recently when
Cable News Network (CNN) ran a misinforming story depicting that violence had
broken out in Kenya, micro-bloggers on Twitter and Facebook sustained a
campaign that led to the withdrawal of the story by CNN. [3]
While on a global scale there are attempts[4] to regulate new media, not many
countries, least of all developing ones, have legislated on new media. States are
therefore using existing, real world laws and ad hoc policies to tackle issues
brought about by new media. This paper examines some emerging issues in new
media and laws that have been applied to new media. It concludes with
recommendations to secure openness in the new media and protection of
freedom of expression as well as other interrelated human rights.
II. New Media and Kenyan Laws

Kenya is a signatory to International and regional instruments guaranteeing the
right to freedom of expression and the right of access to information such as the
Universal Declaration on Human Rights (UDHR)[5], the International Convention
on Civil and Political Rights (ICCPR)[6], the African Charter on Human and
Peoples Rights (ACHPR)[7] and the World Summit on the Information Societys
Declaration of Principles[8] where parties commit to media pluralism and
diversity.
The standards regarding freedom of expression apply to online expression. In

2011 the UN Human Rights Committee stated in General Comment No 34[9] that
the ICCPR protects all forms of expression and the means of their dissemination,
including all forms of electronic and Internet-based modes of expression.[10] At
the same time, the UN Human Rights Committee noted the differences between
traditional and electronic information dissemination systems, and observed that
the laws should take these differences into account.[11]
In relation to the online application of freedom of expression standards, General

Comment No.34 provides that restrictions on the operation of websites, blogs or
any other internet-based, electronic or other information dissemination system
(including systems to support such communication, such as internet service
providers or search engines) are only permissible to the extent that they are
compatible with paragraph 3 of Article 19 ICCPR[1]. Permissible restrictions
generally should be content-specific; generic bans on the operation of certain
sites and systems are not compatible with paragraph 3. It is also inconsistent
with paragraph 3 to prohibit a site or an information dissemination system from
publishing material solely on the basis that it may be critical of the government
or the political social system espoused by the government.
Furthermore, The Joint Declaration on Freedom of Expression and the Internet

of June 2011 noted that regulatory approaches in the telecommunications and
broadcasting sectors cannot simply be transferred to the Internet.[12] The
international mandates called for promotion of the use of self-regulation as an
effective tool in redressing harmful speech.
Kenya is obliged to implement international treaties via domestic law. [13] The
Constitution of Kenya 2010[14] specifically provides for Freedom of Expression
(FOE) (Art. 33), Right of Access to Information (FOI) (Art. 35) [15] as well as
Freedom of the Media (FM) (Art. 35). These provisions are subject to limitations
that are reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom as provided for in the Constitution of Kenya
2010.[16]
Relevant Provisions in Domestic Laws
Kenya has limited cyber law provisions. These are mostly found in the Kenya
Information and Communications Act that has since 1998 been amended in
response to emerging cyber issues. Significant amendments of these laws were
enacted in 2001, 2008 and later, that created crimes related to computing such
as hacking, and also expressly provided for the inclusion of electronic
communications as evidence for purposes of legal proceedings.
Since the 2007/2008 post election violence, authorities are keen to regulate the
online space. For instance, the Kenya Police, National Cohesion and Integration
Commission as well as Communications Commission of Kenya (CCK) have
admitted to monitoring online speech and mobile phone text messages with the
justification of arresting hate speech before it is spread. It is not clear what the
results of the monitoring are or what has been done with suspected perpetrators
of hate messages, as this monitoring is not provided explicitly by law. In light of
this monitoring, seasoned bloggers in the Kenyan community have been avoiding
the use of certain words that are believed to raise red flags in the monitoring
system. CCK also recently announced plans to install network monitoring
software, citing, among other reasons, the increased uptake of the Internet as
well as security threats.
These developments indicate movement towards regulating the online space, at

least from a policy perspective. There are also various legislative provisions that
may be linked to regulating the online space:
The National Cohesion and Integration Act[17] outlaws hate speech in section
13. To date, no one has been charged with online hate speech but the National
Cohesion and Integration Commission (NCIC), the authority charged with
administering the Act, has issued warnings that it would be monitoring content
online, on mobile SMS and taking offenders to court.
The Kenya Information and Communications Act[18] in section 3 establishes a

communications regulator, the Communications Commission of Kenya, (CCK)
which, in the recent past, has announced plans to install network monitoring
software (NEWS) for Internet traffic.[19] Section 84D of the Act also creates the
offence of publishing obscene content.
The Penal Act[20] in Chapter XVIII creates offences related to

d[21]efamation. Defamation is also a civil wrong covered in the Defamation Act
(1992)[22].
Sub-judice rule: This is a common law rule meant to prevent publication of

material that may cause prejudice to an ongoing court case. It is supposed to
instil court reporting caution but it does not seem to be taken much into
consideration in online discussions, which are considered informal by their
participants.
III. Emerging Issues
Kenya enjoys a relatively open forum for new media[23]. This has brought with
it numerous benefits in education, news reporting, disaster management,
charity, voice for marginalized groups and dissemination of knowledge. It has
also been blamed for the dissemination of hate speech and negative messages
that contributed to ethnic violence, particularly during the period leading to the
post-election violence in 2007/2008. Additionally, there have been concerns
about morality, child safety online, the integrity of content, privacy, data
protection and copyright online. Some of these issues are considered in more
detail below.
1. Identity
Anonymity and pseudo anonymity are important tools for discussion, especially
amongst marginalized groups, as they enable people to engage freely. The
challenge with anonymity is that the integrity of content may not always be
guaranteed and that sometimes it has been used to propagate hate speech.
However, in micro-blogging, hate speech and false content can always be
controlled by having mechanisms for taking down the offensive material.
Anonymity is now challenged by the compulsory Subscriber Identity Module

(SIM) card registration exercise that is currently underway in Kenya[24].
Additionally, CCKs plan to introduce network traffic monitoring technology
poses a similar threat to freedom of expression.
2. Public order and security
The Constitution of Kenya envisages very few restrictions of fundamental rights

and freedoms for reasons of public order and security. They include, for example,
limitation of the right to privacy for persons in the Kenya Defence Forces or
National Police Service through legislation. [25] However, in the absence of
specific legislation or developed case law guidance on the permissible
restrictions to freedom of expression and the Internet, bloggers may be arrested
in the name of protecting national security for commenting on matters of
legitimate public interest. This, of course, limits FOE and ultimately FOI for the
public.
The same argument may be used by the State to defend the installation of NEWS
equipment, which is designed to enhance national security by CCK. The privacy
of users communications may be infringed upon without adequate protection
because Kenya has no data protection law ensuring the privacy of the personal
data.[26]
3. Role of intermediaries
The issue of network monitoring equipment brings to the fore the role of
intermediaries - companies providing Internet access, online storage, web, mail
and other related services to their customers. When a regulator asks the same
businesses to install monitoring equipment, it leaves a question as to what extent
intermediaries are to be involved in policing the Internet.
The role of intermediaries needs to be defined with urgency as access to Internet

increases, disputes involving security, copyright, domain names, defamation and
even criminal activities are bound to arise. Such disputes may involve private
entities and the State, with party having particular interests and priorities. For
instance, in a dispute where a private entity requests an intermediary to take
down allegedly offensive content on the website of another private entity, how is
the intermediary to decide which party to honour? Under what circumstances
should the State order an intermediary to interfere with content?
4. Privacy/Confidentiality
Although the right to privacy is guaranteed in the Constitution,[27] this right has
not been translated into national legislation. For instance, there are no data
protection laws to guarantee that data collected in the online realm is protected
from unauthorized access.
Informal surveys point out that many online users, especially new and younger
ones do not clearly understand the wider privacy implications for information
they post about themselves. As the same users get more involved in the new
media space, they must be more careful about the information they provided
online. Unfortunately, new media sites are based in foreign jurisdictions and
currently, Kenya does not have policies on data ownership and data retention
online.
These developments raise a number of important questions. For example, do we

have the right to be anonymous? How do we treat deleted content in social
media? How about the right to be forgotten? Notably, other jurisdictions such as
the EU[28] are already discussing issues related to privacy and anonymity, the
right to forget, storage and ownership of new media content.
5. Intellectual Property Rights
To a large extent, the Kenyan online community does not concern itself with
intellectual property rights. Users share content freely, many times without
attribution. Many rights holders have also disseminated some of their content
through social media. This has mostly worked positively for these people by
promoting their content to a wider audience.
The online community has been active in producing creative works such as
cartoons, caricature etc commenting on topical issues. Sometimes these works
are derived from other rights holders works but they are largely taken as artistic
expression and not many complaints have been recorded by rights holders.
Interesting to note is that bodies such as The Copyright Board[29] are in the
process of revising and updating the law. Having seen past trends where there
was more effort towards protecting proprietary works, it is hoped that revisions
will also focus on non-proprietary works and public knowledge.
6. Reputation/ Defamation
Online defamation is different in nature to offline defamation because of the

speed and magnitude[30] with which published content is disseminated and
discussed. On the other hand, discussions in new media normally take a more
relaxed state, even using very pedestrian language. There are several high profile
cases of people instituting legal proceedings for online defamation.[31]
7. Cyber Security
Cyber security is a real concern as bloggers sometimes have their accounts

hacked and unwanted content is uploaded. On the other hand, cyber-security has
been given as a reason for introducing network monitoring technologies.
8. Censorship
Although this has not been a significant issue in Kenya, there is always a need to
carefully monitor trends leading to censorship of online media. This could be
under the guise of copyright protection, public security, defamation claims or
criminal prosecutions.
9. Network Neutrality
Network neutrality affects access to platforms for new media. Without

technologies being accessible by mobile devices, not everyone accessing the
Internet from a mobile phone will enjoy the same connectivity as those accessing
the same from a computer.
10. Other Issues
Spam: is a problem where users send unsolicited material to other users.
Morality: Kenya is not a homogeneous society and there is no accepted standard

for morality. Yet emerging practices and declarations[32] seem to show a desire
towards content regulation for among other reasons, morality.
Child Safety: Although not so many people have access to the Internet, there are
concerns about children joining new media and accessing adult content.
IV. Conclusion
New media has been an open space and vibrant community for expression and
accessing information in Kenya. |t has achieved great strides for a developing
country. This can be compared to other countries in the region, where regulators
have employed tools such as censorship and content-control to limit the
openness of expression online.
If Kenya regulates online expression, such regulation needs to be done in

consultation with all stakeholders and not just by Government agencies. There is
also a need to take into consideration best practices and recommendations by
international authorities on the subject, for instance the General Comment No 34
of the UN Human Rights Committee, 2011, the Report of the Special Rapporteur
on Freedom of Expression through 2011 and the Declaration of the International
Mandates on Freedom of Expression in 2011. Notably, these authorities focus on
using the Internet to enhance freedom of expression and opinion and only
allowing restrictions under limited, pre-determined conditions. The reports also
call on states to take positive steps to facilitate FOI on the Internet through
promoting access and digital literacy. Importantly, they also highlight the need to
take a holistic approach to negative content online by dealing with issues such as
discrimination, bigotry, and bias by building peace instead of resorting to
censorship on the Internet.
In order to achieve a balanced policy where FOE and FOI is protected and the
rights of all are also guaranteed, some suggested recommendations are:
a) FOE and FOI are constitutional liberties that should not be curtailed under
the guise of copyright protection, public morals, national security or public
order[33]. As the country develops policies and laws to regulate online
expression, Kenya - as a signatory to international human rights instruments -
must continuously ensure that restrictions to FOE comply with the three part
test[34] established by international law.
b) When dealing with the issue of content control online, differentiation needs
to be made between illegal content (which must be prohibited) and harmful,
offensive and objectionable content, which states are not required to prohibit or
criminalize.[35] This is especially important in protecting vulnerable groups in
society such as women and children (e.g. by prohibiting child pornography)
while allowing free expression (e.g. by decriminalizing defamation, so that it is a
civil wrong only) and encouraging self regulation (e.g. in interactive news
reporting). In the process of legislating, Kenya also needs to consider that there
are impermissible restrictions on freedom of expressison as outlined in the
Special Rapporteurs Report. [36] These include discussions on government
policies and debates, reporting on human rights, government activities and
corruption in government, election campaigns, peaceful demonstrations,
expressions of opinion and dissent and expressions by minority or vulnerable
groups.
c) The Internet could be used to monitor, identify, locate and target persons
who disseminate critical or sensitive information via the Internet.
[37]Awareness needs to be created on how users personal data, private
communications and communications in online spaces is being collected, stored
and used. The role of the Government in guaranteeing privacy of all individuals
cannot be overstated. Kenya therefore needs to concentrate efforts towards
realizing privacy, FOI and data protection legislation.[38]
d) Technologies deployed to counter cyber-security threats should ensure that

anonymous/pseudo-anonymous speech online is being allowed, as long as it is
not in violation of the law. In addition, technical measures should be deployed
transparently with the State providing full details regarding the necessity and
justification for such measures. These measures must be implemented by
competent judicial authorities or independent bodies.[39]
e) The role of intermediaries needs to be widely discussed among all
stakeholders. Intermediaries should not be forced to monitor content and
neither should they be held liable for the actions of their users. As noted in the
Joint Declaration on FOE and the Internet, consideration should also be given to
insulating intermediaries against liability for content generated by users. [40]
This not only assures the Internet as a space for free speech but also makes it
affordable for more people to access the internet.
f) The revision of intellectual property laws, for example the Copyright Act,
needs to take into consideration public order and include important aspects for
development such as loosening copyright protection online to increase access to
knowledge: this fosters development and public good more than the status quo.
g) While it is appreciated that the Government is making efforts towards

access to information, for example through the recently launched open data
portal, the Government should prioritize the management of Government
records and increasing access to the large volumes of information held by the
State. Additionally, policies for access, including network neutrality[41] and the
use of public information needs to be put in place to ensure real gains from the
Constitutional provisions.
h) Kenya has a positive obligation to increase access to the Internet in terms of

expanding Internet infrastructure, improving access for people with disabilities
and well as increasing digital literacy. As recommended in the Special
Rapporteurs Report, digital literacy should be included in the school curriculum.
Other than teaching about how to use the Internet, individuals also need to be
educated about responsible expression as well as Internet safety and security.
i) Finally, Kenya recently promulgated a new Constitution that guarantees the

highest protection for FOE and other rights. Citizens must remain vigilant to
ensure that these rights are not abrogated through policy and practice. This can
be achieved in part by approaching the courts for constitutional interpretation
whenever doubts arise as to the protection of these rights.
______________________________________
Grace Mutung'u (Bomu) is a young Kenyan lawyer currently involved in the

formation of a local chapter of the Internet Society (ISOC) in Kenya. Between
2005- 2010 she has served as the Secretary of the Kenya ICT Consumers
Association which is an organisation advocating for consumer empowerment in
the ICT sector of Kenya. She is a Diplo 2009 Internet Governance Capacity
Building Programme Fellow and an ISOC Next Generation Internet Leaders
alumnus. Grace has a passion for culture and youth empowerment and has
participated in many initiatives on the same through groups such as the Pioneers
for Change (Kenya) and the Africa Youth Trust. She is currently serving at Kenya
Network Information Centres (KENIC) Domain Name Dispute Resolution Task
Force, assisting in drafting the policy. The author looks forward to a more
connected world where even those in the remotest parts of a country are able to
share their experiences through the Internet.

[1] Paragraph 3, acknowledges that freedom of expression is a necessary right

for the achievement of other rights.
[1] CCK (2012) Quarterly Sector Statistics, July-Sept 2011/12 available at

http://www.cck.go.ke/resc/downloads/SECTOR_STATISTICS_REPORT_Q1_11-
12.pdf accessed 25th March 2012
[2] Wikipedia on Twitter
[3] See Daily Nation, Kenyans incensed by CNN gaffe at

http://www.nation.co.ke/Tech/-/1017288/1364148/-/13j3cxo/-/index.html
accessed 25th March 2012
[4] For example ACTA, WIPO laws and the three strikes law in France are all
aimed at regulating copyright and IPR online.
[5] http://www.un.org/en/documents/udhr/
[6] http://www2.ohchr.org/english/law/ccpr.htm
[7] http://www.africa-
union.org/official_documents/treaties_%20conventions_%20protocols/banjul%
20charter.pdf
[8] http://www.itu.int/wsis/docs/geneva/official/dop.html
[9] General Comment No. 34 on Article 19 of the ICCPR is based on the idea that
freedom of expression and opinion are fundamental rights that not only enable
other rights but also create an environment for full realisation and protection of
human rights. The General Comment seeks to update Article 19 of the ICCPR by
taking into cognizance developments related to freedom of expression, such as
the Internet. The document also calls upon State parties to protect freedom of
expression and opinion by domesticating Article 19 and encouraging its
interpretation in the widest terms.
[10] Importantly, General Comment No 34 states that Article 19 ICCPR protects

all forms of expression and the means of their dissemination, including all forms
of electronic and Internet-based modes of expression.[10] In other words, the
protection of freedom of expression applies online in the same way as it applies
offline.
[11] Ibid., para. 39.

[12] See Joint Declaration on Freedom of Expression and the Internet, June 2011,
available at: http://www.article19.org/data/files/pdfs/press/international-
mechanisms-for-promoting-freedom-of-expression.pdf
[13] Article 1(5) states that the general rules of International Law shall form part
of the laws of Kenya while Art. 1(6) includes any treaty ratified by Kenya as part
of Kenyan law.
[14] http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/Acts/Constitution
ofKenya2010.pdf
[15] Interestingly, FOI is limited to Kenyan citizens only as was recently

interpreted in the case of Famy Care Ltd v Public Procurement Administrative
Board & 5 where the petitioner, aggrieved by the tendering process of a
Government agency, wanted the agency to disclose minutes of the Tendering
Committee Meeting. In making the decision, the court considered that Article 22
of the Constitution empowers any person to petition the Court for enforcement
of the Bill of Rights. That notwithstanding, the Court still found that not even
public interest could override the limitation that Art.35 provision only applies to
citizens. See case here: http://kenyalaw.org/Downloads_FreeCases/432012.pdf
accessed 2nd April 2012
[16] Sections 24 and 25 of the Constitution of Kenya 2010
[17] http://www.kenyalaw.org/kenyalaw/klr_app/frames.php
[19] See
http://www.businessdailyafrica.com/Corporate+News/CCK+sparks+row+with+
fresh+bid+to+spy+on+Internet+users+/-/539550/1370218/-/item/2/-
/4gnwl6/-/index.html accessed 25th March 2012
[21]
[23] Global Information Society Watch (2009) available at

www.giswatch.org/sites/default/files/gisw2010_en.pdf accessed 25th March
2012
[24] This started with a Presidential Directive in July 2010 that started being
effected the next year. http://english.alshahid.net/archives/8060 accessed 25th
March 2012
[25] See Article 25, Constitution of Kenya

[26] There is a Data Protection Bill 2012 currently undergoing a stakeholder
review process. Access it here:
http://cickenya.org/sites/default/files/bills/Data%20Protection%20Bill%20Re
vised%2010th%20Jan%2C2012_0.pdf
[27] Article 31 of the Constitution of Kenya
[28] See Council of Europe
[29] Ouma, M (2008) Law Technology and Access to Educational Material
[30] For example, in a recent case involving an MP, the MP complained that an
insult posted on his Facebook page had already been viewed by over 1000
friends. See newspaper report here:
http://www.the-star.co.ke/national/national/65854-man-arrested-for-
facebook-insult-on-mp-nguyai accessed 9th April 2012
[31] For example former MP Paul Muite and others sued Moses Kuria for
defamatory statements on his blog. Also, blogger Dennis Itumbi recently
announced that he would sue another blogger Robert Alai for defamation see
http://www.dennisitumbi.com/?p=297 accessed 25th March 2012
[32] For example the NCIC recently recommended declared that it would be
monitoring content on tv and online spaces to ensure it does not leave any group
feeling marginalized. Among the groups targeted were Christians who dominate
airwaves on Sunday mornings.
[33] Notably, the Human Rights Committee, General Comment No.34 reiterates
that FOE is a liberty that States cannot derogate from even during a state of
emergency. See Human Rights Committee, General Comment No.34, at para 5
available at http://www2.ohchr.org/english/bodies/hrc/comments.htm
accessed 9th April 2012
[34] Any restriction to FOE must: be provided for by legislation; pursue one of
the legitimate grounds provided for in Article 19 of UDHR; be necessary and
proportionate.
[35] See Special Rapporteur on FOE report, at para 18
[36] Special Rapporteurs Report at para 37-44
[37] Report of the Special Rapporteur on the Promotion and protection of the
right to freedom of opinion and expression (2011) at para 11 available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.2
7_en.pdf accessed 9th April 2012
[38] This is an obligation noted in General Comment No.34 where states are
required to protect citizens from acts that would impair enjoyment of FOE.
[39] See Special Rapporteurs Report, para 82
[40] See Joint Declaration on FOE and the Internet (2011), at para 2 available at
http://merlin.obs.coe.int/iris/2011/8/article2.en.html accessed 9th April 2012
[41] See Joint Declaration, at para 5
https://www.article19.org/join-the-debate.php/72/view/
Loyola University Chicago, School of Law
LAW eCommons
Faculty Publications & Other Works
2009
Dignity and Speech: The Regulation of Hate

Speech in a Democracy
Alexander Tsesis
Loyola University Chicago, atsesis@luc.edu
Follow this and additional works at: http://lawecommons.luc.edu/facpubs

Part of the Law Commons
Tsesis. Alexander, Dignity and Speech: The Regulation of Hate Speech in a Democracy, 42 Wake Forest Law Review 497 (2009)
This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Faculty Publications & Other Works
by an authorized administrator of LAW eCommons. For more information, please contact law-library@luc.edu.
DIGNITY AND SPEECH: THE REGULATION OF HATE
SPEECH IN A DEMOCRACY
Alexander Tsesis *
INTRODUCTION
Free speech is quintessential for maintaining democracy
because it facilitates the exchange of diverse opinions. In a
representative democracy, dialogue facilitates the testing of
competing claims and obtaining of diverse input into political
decision making. Free speech is also essential to the enjoyment of
personal autonomy.'
The American tradition of free individual expression exists side-
by-side with its Fourteenth Amendment commitment to equality. In
the area of hate speech, the libertarian notion of free expression
comes into tension with the aspiration of equal dignity. While it is
evident that maintaining equality means that government has no
power to treat the speech of similarly situated persons differently,
potential interpersonal friction exists where the speech of one
person threatens the rights or safety of another. With the expansion
of the Internet, new regulatory challenges more frequently arise
because of the global reach of hate propaganda transmitted from the
United States, where it is legal, and streamed into countries, like
France, where such communications are criminal offenses.2
The global reach of supremacist ideology creates a challenge to
world democracies. Societies committed to pluralism are obligated
to safeguard individual expression while promoting egalitarian
principles against harming others' safety and dignity.
Consequently, as much as American society extols freedom of
* Assistant Professor, Loyola University School of Law, Chicago. I am

indebted to Geoffrey Stone, Shannon Gilreath, Mark Tushnet, Richard Delgado,
Sanford Levinson, Alexandra Roginsky, Femi Alese, and Becky Warburton for
their advice.
1. DANIEL J. SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND
PRIVACY ON THE INTERNET 129-32 (2007).
2. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 379
F.3d 1120 (9th Cir. 2004); Yahoo!, Inc. v. La Ligue Contre Le Racisme et
L'Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001); Richard Raysman &
Peter Brown, Yahoo! Decision in FranceFuels E-Commerce Sovereignty Debate,
N.Y. L.J., Dec. 12, 2000, at 3; Yahoo! Loses Nazi Case, NAT'L L.J., Dec. 4, 2000,
at B4.
HeinOnline -- 44 Wake Forest L. Rev. 497 2009

WAKE FOREST LAW REVIEW [Vol. 44
speech, there are many instances in which competing interests, such

as retaining a good reputation in one's community, place restraints
on public communications. Where one person wishes to express
false statements about another, defamation law sides not with the
desire for inaccurate catharsis but with the protection of reputation.3
The preference for an "individual's right to the protection of his own
good name 'reflects no more than our basic concept of the essential
dignity and worth of every human being.' 4 Public policy favors the
interest of libeled individuals over that of anyone wishing to
intentionally or negligently spread fallacy! So too where words are
likely to result in the immediate breach of the peace. The Supreme
Court has found that the government has a countervailing social
interest in order and morality that justifies some limitations on
speech.6
This Article opens with an analysis of hate speech in a
democratic society. The first topic to investigate is the role of speech
in our constitutional democracy. The current Supreme Court cases
that affect the status of hate speech are then reviewed and
critiqued. Finally, the Article contrasts the American approach to
destructive messages with the European and Canadian models.
I. SPEECH AND DEMOCRACY

The protection of free speech is essential for a democracy
committed to personal autonomy and political pluralism. Scholars
in the United States, like Robert Post, have tended to view hate
speech as a protected form of expression. In a seminal article,
Racist Speech, Democracy, and the First Amendment, Post pointed
out that the First Amendment debate on the legitimacy of hate
speech regulation must be mindful of the "social context" of racist
communication.7 He drew attention to the importance of speech,
both for personal self-determination and for deliberative
development of public opinion. 8 Those who advocate for the
imposition of restrictions on hate propaganda, Post argues, "carry
the burden of justifying" the democratic value of such a policy.9
Public discourse is so critical to the development of a democratic
collective will, Post wrote elsewhere, that "racist speech is and ought
to be immune from regulation within public discourse. "'
3. John Murphy, Rethinking Injunctions in Tort Law, 27 OXFORD J. LEGAL

STUD. 509, 518 n.50 (2007); Russell L. Weaver & David F. Partlett, Defamation,
Free Speech, and Democratic Governance, 50 N.Y.L. SCH. L. REV. 57, 57 (2005).
4. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974).
5. See id. at 345-46.
6. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
7. Robert C. Post, Racist Speech, Democracy, and the FirstAmendment, 32
WM. & MARY L. REV. 267, 325-26 (1991).
8. Id. at 326.
9. Id. at 327.
10. Id. at 322.
20091 DIGNITY AND SPEECH 499
Post's theory of free speech offers a useful starting point. Self-

determination is essential to democratic discourse and decision
making. This framework is helpful for assessing how equal
community membership can be reconciled with the individual First
Amendment freedom of self-assertion. Post, however, emphasizes
the personal autonomy aspect of the First Amendment without
himself adequately balancing it against competing democratic
values. The freedom to intimidate vulnerable groups, for instance,
can prevent others from enjoying their equal right to public safety.
Aggressive advocacy against identifiable groups also attacks their
sense of dignity." Post's approach to this topic correctly emphasizes
democracy's obligation to respect self-assertion, but he should have
also factored in individual interest to be free from reasonably
anticipated risks flowing from inflammatory statements.
Hate speakers seek to intimidate targeted groups from
participating in the deliberative process. Diminished political
participation because of safety concerns, in turn, stymies policy and
legislative debates. 2 Discriminatory assertions are meant to stymie
the depth of pluralistic speech. 13 Demeaning stereotypes can
delegitimize the opinions of disfavored groups. Post points out that
the First Amendment serves the democratic role of safeguarding
"the value of self-determination."14 "The normative essence of
democracy," he writes, "is... located in the communicative
processes necessary to instill a sense of self-determination."'1 This
characterization, however, only captures part of the rationale behind
the protection of free speech. In a pluralistic society, where clashes
of interests among equals are unavoidable, reconciling them often
requires weighing competing concerns. Speech, like any other
individual right, sometimes has to give way to other democratic
values, such as equality. 16 Self-assertion is not an absolute trump
11. See R. George Wright, Dignity and Conflicts of Constitutional Values:

The Case of Free Speech and Equal Protection, 43 SAN DIEGO L. REV. 527, 544-
45 (2006).
12. Charles J. Ogletree, Jr., The Limits of Hate Speech: Does Race Matter?,
32 GONZ. L. REV. 491, 502 (1996). See generally Alexander Tsesis, The
Boundaries of Free Speech, 8 HARV. LATINO L. REV. 141 (2005) (reviewing
RICHARD DELGADO & JEAN STEFANCIC, UNDERSTANDING WORDS THAT WOUND
(2004)).
13. See Michel Rosenfeld, Hate Speech in Constitutional Jurisprudence:A
ComparativeAnalysis, 24 CARDOZO L. REV. 1523, 1561-62 (2003).
14. Post, supra note 7, at 281.
15. Id. at 282.
16. Virginia v. Black, 538 U.S. 343, 399 (2003) (Thomas, J., dissenting)
("That the First Amendment gives way to other interests is not a remarkable
proposition."); Ronald J. Krotoszynski, Jr., "I'd Like to Teach the World to Sing
(In Perfect Harmony)": International Judicial Dialogue and the Muses-
Reflections on the Perils and the Promise of InternationalJudicial Dialogue, 104
MICH. L. REV. 1321, 1326 (2006) (reviewing JUDGES IN CONTEMPORARY
DEMOCRACY: AN INTERNATIONAL CONVERSATION (Robert Badinter & Stephen
Breyer eds., 2004) and mentioning the European model of regulating hate

500 WAKE FOREST LAW REVIEW [Vol. 44
against egalitarian decision making.

The Supreme Court has found that several restraints on speech
do not interfere with the First Amendment. The depiction of
obscenity, for instance, may be restricted when it portrays conduct
in a patently offensive manner in order to appeal to a "prurient
interest in sex. " " While this standard does not allow for suppression
of sexual depictions solely because they are "utterly without
redeeming social value,"18 courts may weigh speech rights against
"whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value." 19 The Court's obscenity test is
predicated on the premise that an autonomous right of lewd
communication may sometimes be outweighed by well-defined
contemporary community concerns.2 In the case of adult book
stores, local governments can place restrictions on their locations in
order to reduce criminal activities and prevent a precipitous drop in
neighborhood real estate values. 2' Elsewhere, a plurality similarly
noted that "society's interest" in protecting businesses engaged in
the sale of explicit sexual products is of lesser importance than the
safeguarding of "untrammeled political debate."22 Like obscenity
and the operation of adult theaters, the dissemination of hate speech
raises concerns unassociated with self-determination.
Even though political speech is essential to the functioning of a
democratic government, it is not afforded absolute protection under
the First Amendment. In Nebraska Press Ass'n v. Stuart, the
majority explicitly stated that the "Court has frequently denied that
First Amendment rights are absolute."23
Restrictions can even be placed on electioneering within one
hundred feet of polling places on election day to prevent voter
intimidation.24 A plurality of the Court has determined that
speech on pluralistic grounds).

17. Miller v. California, 413 U.S. 15, 24 (1973).
18. A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v.
Attorney Gen. of Mass., 383 U.S. 413, 418 (1965); see also Miller, 413 U.S. at 24.
19. Miller, 413 U.S. at 24.
20. For a debate on the democratic value of obscenity speech, see James
Weinstein, Democracy, Sex and the FirstAmendment, 31 N.Y.U. REV. L. & Soc.
CHANGE 865 (2007); Andrew Koppelman, Free Speech and Pornography: A
Response to James Weinstein, 31 N.Y.U. REV. L. & SOC. CHANGE 899 (2007);
James Weinstein, Free Speech Values, Hardcore Pornography and the First
Amendment: A Reply to ProfessorKoppelman, 31 N.Y.U. REV. L. & SOC. CHANGE
911 (2007); see also David A.J. Richards, Free Speech and Obscenity Law:
Toward a Moral Theory of the First Amendment, 123 U. PA. L. REV. 45, 62
(1974). I do not wish to enter this debate here, but it is worth pointing out that
current Supreme Court jurisprudence places greater emphasis on limiting
obscene speech than on the ability to express it.
21. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986).
22. Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality
opinion).
23. 427 U.S. 539, 570 (1976).
24. Burson v. Freeman, 504 U.S. 191, 206 (1992) (plurality opinion).

2009] DIGNITY AND SPEECH
protecting the electoral process against the harassment of voters is a

compelling governmental policy.25 Neither is harassing anti-
abortion speech shielded by the First Amendment even though it
may be politically motivated.26 In this circumstance, as Justice
Clarence Thomas recently pointed out in a dissent, it is an
established proposition that "the First Amendment gives way to
other interests."27 The privacy right of patients outweighs that of
persons resorting to intimidation to counsel against abortion. In
another case, the Court found that a law preventing picketing in
front of a residence was constitutional even though it was enacted to
prevent the politically motivated harassment of abortion providers. 2
Maintaining public order is another social value that the
government may balance against speakers' rights.2 9 In order to
protect democracy, a state can promulgate narrowly tailored
criminal regulations against intimidation that threatens public
safety.3 The threat to individuals' physical well-being and dignity
interests may supersede those of individuals who resort to
intimidating symbols like burning crosses and swastikas to elicit
violence. Hate speech is a threatening form of communication that
is contrary to democratic principles. It not only asserts personal
opinion but also aims to prevent segments of the population from
participating in deliberative decision making.3 In combating the
threat, states committed to free speech may adopt laws that prevent
the dangerous dissemination of messages without interfering with
legitimate, although sometimes offensive, discourse.
When harassing expression is disguised as political expression
it adds nothing to democratic debate. This is most clearly
illustrated by the use of political hate speech in Nazi Germany and
Rwanda, where politicians relied on anti-Semitic and anti-Tutsi
25. Id. at 199.

26. Hill v. Colorado, 530 U.S. 703, 708, 716 (2000).
27. Virginia v. Black, 538 U.S. 343, 399 (2003) (Thomas, J., dissenting); see
also Tenn. Secondary Sch. Athletic Ass'n v. Brentwood Acad., 127 S.Ct. 2489,
2495 (2007)
[Tihe scope of a government employee's First Amendment rights
depends on the "balance between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees."
(quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563,
568 (1968)).
28. Frisby v. Schultz, 487 U.S. 474, 487-88 (1988).
29. See Schenck v. Pro-Choice Network, 519 U.S. 357, 375-76 (1997)
(balancing free speech and public safety); New Jersey v. T.L.O., 469 U.S. 325,
351-53 (1985) (Blackmun, J., concurring) (discussing balancing public order as
a social value).
30. See David Alan Sklansky, Police and Democracy, 103 MICH. L. REV.
1699, 1769 (2005) ("In most of its current forms,... participatory democracy
tends to highlight the importance of order and public safety.").
31. Ogletree, supra note 12, at 502; Tsesis, supra note 12, at 148.

diatribe to temporarily gain control of the governments. 2 Even a

verbal altercation with a governmental figure that poses an
immediate risk of harm can be punished. In Chaplinsky v. New
Hampshire, the Court found that a Jehovah's Witness who verbally
attacked a police marshal had used "fighting words." The Court
ruled that "[t]here are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which has never
been thought to raise any Constitutional problem."3 Society's
interest in "order and morality" outweighs any benefit that the
speaker might derive from such utterances.34 The continued vitality
of the "fighting words" doctrine has been repeatedly affirmed by the
Supreme Court.35 Hate speech, like imminently threatening
expression, threatens the public peace; neither, therefore, is
protected by the First Amendment.3 6 They are both unrelated to the
First Amendment interest of facilitating the free exchange of ideas
in the search for truth. 37 The social valuation of personal security
and dignity allows for some limitation on the content of speech when
its expressive value is significantly lower than its likelihood of
causing harm.
Judicially recognized limitations on offensive speech indicate
32. See Susan Benesch, Vile Crime or Inalienable Right: Defining

Incitement to Genocide, 48 VA. J. INT'L L. 485, 501 (2008). On the use of political
hate speech in pre-genocidal Rwanda, see MAHMOOD MAMDANI, WHEN VICTIMS
BECOME KILLERS: COLONIALISM, NATIvISM, AND THE GENOCIDE IN RWANDA 189-90
(2001); GtRARD PRUNIER, THE RWANDA CRISIS: HISTORY OF A GENOCIDE 142-43
(1995); JOSIAS SEMUJANGA, ORIGINS OF RWANDAN GENOCIDE 155-56 (2003). And
on the use of National Socialist hate speech prior to Nazi accession and
governance, see LuCY S. DAWIDOWICZ, THE WAR AGAINST THE JEWS 1933-1945, at
23-47, 56-58 (1975); RICHARD J. EvANs, THE THIRD REICH IN POWER 1933-1939,
at 573-79 (2005); SAUL FRIEDLANDER, 1 NAzI GERMANY AND THE JEWS: THE
YEARS OF PERSECUTION, 1933-1939, at 26-27 (1997); DANIEL JONAH GOLDHAGEN,
HITLER'S WILLING EXECUTIONERS: ORDINARY GERMANS AND THE HOLOCAUST 90-
92 (1996); ALEXANDER TSESIS, DESTRUCTIVE MESSAGES: HOW HATE SPEECH PAVES
THE WAY FOR HARMFUL SOCIAL MOVEMENTS 21-25 (2002).
33. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
34. Id. at 572.
35. See, e.g., Virginia v. Black, 538 U.S. 343, 358-59 (2003); R.A.V. v. City
of St. Paul, 505 U.S. 377, 382-83 (1992).
36. See R.A.V., 505 U.S. at 401 (White, J., concurring).
37. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,
dissenting)
[M]en... may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas-that the best test of truth is
the power of the thought to get itself accepted in the competition of
the market.
38. See New York v. Ferber, 458 U.S. 747, 763-64 (1982) (stating that "it is
not rare that a content-based classification of speech has been accepted [as
being constitutional] because it may be appropriately generalized that within
the confines of the given classification, the evil to be restricted so
overwhelmingly outweighs the expressive interests").

20091 DIGNITY AND SPEECH
that, in our constitutional democracy, certain social values can

outweigh speakers' interests in self-determined expression. The
most recent Supreme Court case on the use of intimidating
communications signaled that hate speech was even more socially
harmful than statements that, as in Chaplinsky, tend to illicit an
immediate breach of the peace. In Virginia v. Black, the Court
upheld a state criminal statute against intimidating cross burning.3
The justices split on another issue of whether the prima facie
element of the Virginia statute was constitutional, with a plurality
of the Court holding that the scienter element of the offense must be
proven beyond a reasonable doubt.40
The Court weighed historical evidence of the burning cross's
connection with domestic terrorism against the social interest in
leaving speakers unimpeded to use the symbol for ascertaining
truth. 4' The burning cross, the justices found, is historically linked
to violence and intimidation rather than any truth-seeking activity.42
States are free to pursue a policy against dangerous messages in an
effort to prevent the likely instigation of violence.43
As Black made clear, regulations against intimidating hate
speech can reflect that there is a greater governmental interest in
preventing the use of historically incitable expressions than in
tolerating the cathartic expression of menacing animus. That case
was monumental because it provided states with guidance on how to
contour hate speech legislation without running awry of the
Constitution's democratic principles. The Court's focus might have
been even more valuable had it analyzed democratic institutions, as
Robert Post had suggested. 44
II. LIBERAL EQUALITY AND HATE SPEECH

Hate speech commonly relies on stereotypes about insular
groups in order to influence hostile behavior toward them.45
Supremacist and outright menacing statements deny that targeted
groups have a legitimate right to equal civil treatment and advocate
against their equal participation in a democracy.46 Destructive
39. 538 U.S. at 363.

40. Id. at 363-64 (plurality opinion); id. at 369-70 (Scalia, J., concurring)
(arguing that the prima facie element of the offense was unconstitutional).
41. Id. at 360-62 (plurality opinion).
42. Id. at 357.
43. Cohen v. California, 403 U.S. 15, 20 (1971).
44. Post, supra note 7, at 287-88.
45. See HOWARD J. EHRLICH, THE SOCIAL PSYCHOLOGY OF PREJUDICE: A
SYSTEMATIC THEORETICAL REVIEW AND PROPOSITIONAL INVENTORY OF THE
AMERICAN SOCIAL PSYCHOLOGICAL STUDY OF PREJUDICE 21 (1973).
46. See Rory McVeigh, Structured Ignorance and OrganizedRacism in the
United States, 82 Soc. FORCES 895, 902-03 (2004) (discussing how supremacist
protest can harness collective action against minorities during favorable
political circumstances).

messages are particularly dangerous when they rely on historically

established symbolism, such as burning crosses or swastikas, in
order to kindle widely shared prejudices. Messages that are meant
to hurt individuals because of their race, ethnicity, national origin,
or sexual orientation have a greater social impact than those that
attempt to draw out individuals into pugilistic conflicts.
Establishing a broad consensus for large-scale harmful actions, such
as those carried out by supremacist movements, relies on a form of
self-expression that seeks the diminished deliberative participation
4
of groups of the populationY. Hate speech extols injustices, devalues
human worth, glamorizes crimes, and seeks out recruits for
antidemocratic organizations.
Advocacy to commit crimes against an identifiable group, to
publically burn a cross, or to exhibit a swastika during a public
meeting can be posted on a supremacist Internet site." All of these
are not merely assertions of abstract, unpopular ideas, nor are they
solely defamatory statements. They often aim to intimidate and
exclude readily identifiable groups from enjoying their political
freedoms.' Charismatic leaders rely on hate propaganda to recruit
others to join their organization, which may advocate violence,
bigotry, and discrimination.' The risks associated with hate speech
are particularly acute during times of economic crisis, when
47. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992) (explaining
the restriction on fighting words because of their "slight social value" (citing
Champlinsky v. New Hampshire, 315 U.S. 568, 572 (1942))).
48. See Christopher J. Peters, Adjudicative Speech and the First
Amendment, 51 UCLA L. REV. 705, 795-96 (2004).
49. Chris Demaske, Modern Power and FirstAmendment: ReassessingHate
Speech, 9 COMM. L. & POL'Y 273, 283, 291 (2004) (linking hate speech and hate
crimes); S~vane Garibian, Taking Denial Seriously: Genocide Denial and
Freedom of Speech in the French Law, 9 CARDOZO J. CONFLICT RESOL. 479 (2008)
(concerning the harm to democracies resulting from hate speech and genocide
denial); Tsesis, supra note 12, at 148 (discussing the empirical correlation
between hate crimes and hate speech); Alexander Tsesis, The Empirical
Shortcomings of First Amendment Jurisprudence:A Historical Perspective on
the Power of Hate Speech, 40 SANTA CLARA L. REv. 729, 779-80 (2000).
50. See Alexander Tsesis, ProhibitingIncitement on the Internet, 7 VA. J.L.
& TECH. 5, at pt. II (2002) (describing internet hate cites),
http://www.vjolt.net/vol7/issue2/v7i2_a05-Tsesis.pdf (last visited Mar. 30, 2009).
51. Virginia v. Black, 538 U.S. 343, 359-60 (2003) (assessing the
intimidating threat of cross burning); Timothy Zick, Cross Burning,
Cockfighting, and Symbolic Meaning: Toward a FirstAmendment Ethnography,
45 WM. & MARY L. REV.2261, 2291 (2004) ("There can be little doubt that the
swastika is as intimidating to some as the burning cross.").
52. Plato's Republic is the earliest mention, to my knowledge, of how
charismatic leaders can degrade democracy. The philosopher recognized that
agitators systematically generate broad support by denigrating their enemies
with false accusations. Plato also had the foresight to realize that the freedoms
people enjoy in a democracy can be exploited to establish mob rule and,
subsequently, tyranny. Plato, The Republic, in THE DIALOGUES OF PLATO
820-24 (B. Jowett trans., Random House 1937).

scapegoating becomes 53
a common reaction for the loss of jobs or
financial instability.
Racist instigation ascribes undesirable traits to disparaged
groups-greediness to Jews, lasciviousness to blacks, and laziness to
Mexicans-in order to diminish their political and social standing."
The message conveyed is that differences in race, gender, ethnicity,
and sexual orientation "are distinctions of merit, dignity, status, and
personhood."55
Easily identifiable symbols of intimidation, like burning crosses,
make the affective part of demagogues' messages more influential. 56
The very purpose of intimidating hate speech is to perpetuate and
augment existing inequalities. Although the spread of intimidating
hate speech does not always lead to the commission of
discriminatory violence, it establishes the rationale for attacking
particular disfavored groups.
Some historical examples will demonstrate how hate groups
rely on destructive messages to develop ideologically grounded
organizational infrastructure.5 Before Nazis began implementing
the attempted genocide of the Jews, German political folklore
regarded Jews as vermin, unworthy of life and requiring
53. W. FITZHUGH BRUNDAGE, UNDER SENTENCE OF DEATH: LYNCHING IN THE

SOUTH 133 (1997); JOSEPH F. HEALEY, RACE, ETHNICITY, GENDER, AND CLASS: THE
SOCIOLOGY OF GROUP CONFLICT AND CHANGE 437 (2006); NANCY MACLEAN,
BEHIND THE MASK OF CHIVALRY: THE MAKING OF THE SECOND KU KLUX KLAN
159-60 (1994).
54. ALBERT MEMMI, RACISM 174-75 (Steve Martinot trans., 2000)
(explaining the evolution of anti-Semitic stereotypes); ROBERT C. SMITH, RACISM
IN THE POST-CIVIL RIGHTS ERA: Now YOU SEE IT, Now YOU DON'T 10 (1995)
(discussing the black stereotype); DAVID J. WEBER, "Scarce more than apes.".
Historical Roots of Anglo American Stereotypes of Mexicans in the Border
Region, in 2 RACE AND U.S. FOREIGN POLICY IN THE AGES OF TERRITORIAL AND
MARKET EXPANSION, 1840 TO 1900, at 89, 89-98 (Michael L. Krenn ed., 1998)
(describing some roots of stereotypes against Mexicans); Dana DiFilippo &
Stephanie Farr, A New Way of Hate, PILA. DAILY NEWS, Oct. 29, 2008, at 3
(documenting a 35% rise in hate crimes between 2003 and 2006 that were
perpetrated against Latinos and stating that "[s]upremacists who used to
express their loathing for blacks, gays, Jews and other minorities with fists and
fire now post fliers, blog online, ramble on talk radio, commune at invitation-
only white-power concerts and gather for subdued ceremonies with subtle
messages"); Latinos Targeted ForHate Crimes? (CNN television broadcast Nov.
12, 2008), available at http://archives.cnn.com/TRANSCRIPTS/0811
/12/cnr.07.html (discussing how an increased incidence of the demonization and
vilification of immigrants, especially Latinos, leads to increasing incidents of
hate crimes).
55. Richard Delgado, Words that Wound: A Tort Action for Racial Insults,
Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 136 (1982).
56. See OWEN M. FISS, THE IRONY OF FREE SPEECH 14 (1996) (relating how
hate speech affects human emotion).
57. Kathleen E. Mahoney, Hate Speech: Affirmation or Contradiction of
Freedom of Expression, 1996 U. ILL. L. REV. 789, 792.

fumigation. 58 In our country, proslavery advocates widely

disseminated claims that blacks were subhumans who were
ordained to subservience. In these cases, supremacists recruited
followers to act on the propaganda of ethnic and religious
superiority. The availability of these messages in German and
American democratic discourse had the opposite effect of Robert
Post's expectation: they tainted the political process and prevented
certain groups from participating in it.
Permitting persons or organizations to spread ideology touting a
system of discriminatory laws or enlisting vigilante group violence
erodes democracy. So it was in the Weimar Republic, where the
repeated anti-Semitic propaganda of vulgar ideologues like Julius
Streicher, who published perverse attacks against Jews in Der
Stiirmer, chipped away at the post-World War I German democratic
experiment. 6' Avowedly influenced by nineteenth century anti-
Semitism, his weekly stories of Jewish ritual murder and sexual
exploitation were a crude way of antagonizing the victims and
gaining support for widespread prejudice against Jews." It is truly
eerie, now, looking at photographs relating the effectiveness of Nazi
propaganda: respectable looking adults in suits and dresses
listening to long lectures on Jewish inferiority; children, barely able
to stand on their two feet, raising their right arm in a Nazi salute.
Nazi propaganda incorporated numerous well-known
nineteenth century slogans. To take one example, Streicher, who
was later sentenced to death by the Nuremberg War Crimes
Tribunal, 64 used an inflammatory slogan, "The Jews are our
58. On the nineteenth century German stereotype of Jews and the Nazis'
incorporation of it into their official political doctrine, see RICHARD M. LERNER,
FINAL SOLUTIONS: BIOLOGY, PREJUDICE, AND GENOCIDE 27-28 (1992); FRITZ
STERN, THE POLITICS OF CULTURAL DESPAIR: A STUDY IN THE RISE OF THE
GERMANIC IDEOLOGY 61-63 (1961); TSESIS, supra note 32, at 13-20.
59. See 2 EDWARD LONG, THE HISTORY OF JAMAICA 353-73 (1774)
(taxonomizing blacks somewhere between humans and simians); PERSONAL
SLAVERY ESTABLISHED, BY THE SUFFRAGES OF CUSTOM AND RIGHT REASON 18
(1773).
60. Steven J. Heyman, Righting the Balance: An Inquiry into the
Foundationsand Limits of Freedom of Expression, 78 B.U. L. REV. 1275, 1375-
76 (1998).
61. See RICHARD J. EVANS, THE COMING OF THE THIRD REICH 188-89 (2003).
62. DONALD BLOXHAM, GENOCIDE ON TRIAL: WAR CRIMES TRIALS AND THE
FORMATION OF HOLOCAUST HISTORY AND MEMORY 64-65 (2001); EvANs, supra
note 61, at 188-89 (describing Der Stilrmer and Streicher's place in the Nazi
Party); G.M. GILBERT, NUREMBERG DIARY 23 (1947) (providing personal
testimony of Streicher's influence).
63. EvANS, supra note 61, at 217 (depicting young people on the street
looking at Nazi propaganda); EVE NUSSBAUM SOUMERAI & CAROL D. SCHULZ,
DAILY LIFE DURING THE HOLOCAUST 54 (1998) (depicting Germans saluting
Hitler).
64. By the 1930s, Streicher's newspaper was used as a teaching tool by
elementary school teachers. RICHARD GUTTERIDGE, OPEN THY MOUTH FOR THE

misfortune!" on his newspaper masthead.& At one point over

130,000 copies of his publication were sold and displayed on public
message boards throughout the country.66 The phrase also became
prominently featured on posters throughout the Third Reich.67
This slogan was taken verbatim from an 1879 article by
Professor Heinrich von Treitschke, arguably the greatest German
historian of the nineteenth century.68 Its visibility in pre-World War
II German society helped legitimize anti-Semitism there in
intellectual circles.69
A gradual process of incitement also occurred elsewhere. In
many American colonies, authors and legal institutions had been
degrading blacks since the seventeenth century. 70 By national
independence, in 1776, the colonies of South Carolina and Georgia
had long-standing commitments to retaining slavery despite the oft-
repeated mantra of universal natural rights. In 1787, those two
DUMB!: THE GERMAN EVANGELICAL CHURCH AND THE JEWS, 1879-1950, at 161-62
(1976).
65. KARL DIETRICH BRACHER, THE GERMAN DICTATORSHIP: THE ORIGINS,
STRUCTURE, AND EFFECTS OF NATIONAL SOCIALISM 37-38 (Jean Steinberg trans.,
Praeger Publishers 1970) (1969).
66. SOuMERAI & SCHULZ, supra note 63, at 51.
67. Id.
68. HEINRICH VON TREITSCHE, A Word About Our Jews, 575, translated in
ANTISEMITISM IN THE MODERN WORLD: AN ANTHOLOGY OF TEXTS 69-73 (Richard
S. Levy ed., 1990); see also ALBERT S. LINDEMANN, ESAU'S TEARS: MODERN ANTI-
SEMITISM AND THE RISE OF THE JEWS 131(1997).
69. Shulamit Volkov, Antisemitism as a Cultural Code: Reflections on the
History and Historiography of Antisemitism in Imperial Germany, in 2 [The
Origins of the Holocaust] THE NAZI HOLOCAUST: HISTORICAL ARTICLES ON THE
DESTRUCTION OF EUROPEAN JEWS 307, 323-25 (Michael R. Marrus ed., 1989).
70. See ALEXANDER TSESIS, WE SHALL OVERCOME: A HISTORY OF CIVIL
RIGHTS AND THE LAW 22-24 (2008) (discussing colonial racism).
71. For a variety of colonial slave laws, see An Act Repealing an Act
Intituled [sic] An Act for Rendering the Colony of Georgia More Defensible by
Prohibiting the Importation and Use of Black Slaves or Negroes Into the Same
(1742), reprinted in 1 THE COLONIAL RECORDS OF THE STATE OF GEORGIA 59-60
(Allen D. Candler compiler, 1904); Supplementary Act to the Act Relating to
Servants and Slaves (1717), reprinted in 33 PROCEEDINGS AND ACTS OF THE
GENERAL ASSEMBLY OF MARYLAND 112 (Clayton Colman Hall ed., 1913); An Act.
. . (1704), reprinted in 26 PROCEEDINGS AND ACTS OF THE GENERAL ASSEMBLY OF
MARYLAND 259-60 (William Hand Browne ed., 1906) (1704); An Act Concerning
Negros & Other Slaves (1664), reprinted in 1 PROCEEDINGS AND ACTS OF THE
GENERAL ASSEMBLY OF MARYLAND 533-34 (William Hand Browne ed., 1883); 1
ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE PROVINCE OF THE
MASSACHUSETTS BAY 578-79 (1869); 4 THE STATUTES AT LARGE OF PENNSYLVANIA
62-63 (1897); 7 THE STATUTES AT LARGE OF SOUTH CAROLINA 352-53, 363, 371
(David J. McCord ed., 1840); An Act for the Better Governing and Regulating
White Servants, No. 383 (1717), reprinted in 3 THE STATUTES AT LARGE OF
SOUTH CAROLINA 20 (Thomas Cooper ed., 1838); 2 STATUTES AT LARGE: BEING A
COLLECTION OF ALL LAWS OF VIRGINIA 170 (William W. Hening, ed., 1823); 3
STATUTES AT LARGE: BEING A COLLECTION OF ALL LAWS OF VIRGINIA 170 (William
W. Hening, ed., 1823) 86-87; id. at 453-54; EDWARD R. TURNER, THE NEGRO IN
PENNSYLVANIA 30 n.37 (1911).

states refused to endorse the proposed Constitution without

provisions protecting that undemocratic institution."72
Senator John Calhoun, Congressman Henry Wise, and other
powerful racist orators misled the public about the supposedly
benevolent slave owner, feeding his slaves and treating them like
his own children. 3 The repeated inculcation of supremacism proved
effective in misrepresenting blacks as moveable property.
Abolitionists like Theodore Weld, Angelina and Sarah Grimk6,
Frederick Douglass, and William Lloyd Garrison were unable to win
over the country to their abolitionist views.74 To the contrary,
proslavery thought monopolized the Southern marketplace of
ideas.' Slavery came to an end after a bloody Civil War, not
through articulate or even heated debate. 6
Because intimidating hate speech has so often inflamed
dangerous attitudes, the value of such expression should be
balanced against the likelihood that it will cause harm. The risks
are greater when hate propaganda incorporates symbolism, like
swastikas, that demagogues have historically displayed to rally
supporters to action. Robert Post is undoubtedly correct that speech
is valuable because it provides a breeding ground for "collective self-
determination."7 7 The more difficult question is how self-expression
should be treated when it conflicts with the safety of its target.
As much as self-expression is fundamental to democratic
institutions, it can, nevertheless, be balanced against the social
interest in safeguarding a pluralistic culture by preventing the
instigation of demagogic threats. Placing no limits on speech-not
even on expressions blatantly intended to make life miserable for
minorities-preserves the rights of speakers at the expense of
targeted groups. Defamation statutes, zoning regulations, and
obscenity laws indicate that the freedom of speech is not shielded
where it undermines other individuals' legitimate interests. 7 Hate
72. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 371-73 (Max

Farrand ed., 1911) (containing speeches of South Carolina and Georgia
representatives at the Constitutional Convention insisting on the inclusion of
slave-protecting clauses).
73. EDWARD L. AYERs, IN THE PRESENCE OF MINE ENEMIES: WAR IN THE
HEART OF AMERICA 1859-1863, at 117 (2003); EDWARD P. CRAPOL, JOHN TYLER:
THE ACCIDENTAL PRESIDENT 68 (2006).
74. See generally LOuIS FILLER, THE CRUSADE AGAINST SLAVERY 1830-1860
(1960).
75. LARRY E. TISE, PROSLAVERY: A HISTORY OF THE DEFENSE OF SLAVERY IN
AMERICA, 1701-1840, at 8 (1987).
76. Two articles in this symposium offer differing views on abolitionist
speech in the antebellum South. See Michael Kent Curtis, Be Careful What You
Wish For, 44 WAKE FOREST L. REV. 431, 479 (2009); Shannon Gilreath, Tell Your
FaggotFriend He Owes Me $500 for My Broken Hand, 44 WAKE FOREST L. REV.
557, 610-11 (2009).
78. See infra Part III.
speech regulation undoubtedly inhibits some opportunities for self-

expression; more importantly, it prevents instigative communication
from undermining its targets' ability to live unaccosted by
harassment.
In the many historic examples when destructive messages
proved to be effective in instigating violence, they caused enormous
social turmoil. Just like shouting "fire" in a crowded movie theater,
which can be prohibited without violating the First Amendment,79
hate speech can cause a stampede. Take Spain, for instance, which
expelled its Jewish population in 1492.80 The expulsion came after
years of Inquisition propaganda and hurt both the exiled Jews and
the remaining Spanish population. 1 Teachings by zealous
preachers like Vincent Ferrer, a later-canonized Dominican monk,
in the late fifteenth century brought on a nationwide anti-Jewish
hysteria that opposed the free practice of Judaism while decrying
overt violence.82 Pursuant to his instigation, a Castilian decree
discriminated against Jews in employment, dress, and criminal
punishments.8 3 Historian Heinrich Graetz explained the connection
between anti-Jewish preaching and draconian edicts: the populace
was "inflamed by the passionate eloquence of the preacher [and]
emphasized his teaching by violent assaults on the Jews." 4 Another
historian explained that:
For centuries, Christians had been encouraged to hate the

Jews. With preachers telling them, Sunday after Sunday, that
Jews were perverted and guilty of complicity in the death of
Christ, the faithful ended up by detesting them with a hatred
that was bound one day to express itself in violence .815
Once unleashed, the expulsion of Jews from Spain followed 86
naturally from the verbal spread of hatred during the Inquisition.
The economic consequences were grave. Many commercial
79. Schenck v. United States, 249 U.S. 47, 52 (1919) ("The most stringent
protection of free speech would not protect a man in falsely shouting fire in a
theater and causing a panic.").
80. BEN KIERNAN, BLOOD AND SOIL: A WORLD HISTORY OF GENOCIDE AND
EXTERMINATION FROM SPARTA TO DARFUR 70(2007).
81. MARVIN PERRY & FREDERICK M. SCHWEITZER, ANTISEMITISM: MYTH AND
HATE FROM ANTIQUITY TO THE PRESENT 128 (2002).
82. JAMES M. ANDERSON, DAILY LIFE DURING THE SPANISH INQUISITION 92
(2002); 4 HEINRICH GRAETZ, HISTORY OF THE JEWS 200-06 (1894); FREDERIC
DAVID MOCATTA, THE JEWS OF SPAIN AND PORTUGAL AND THE INQUISITION 17
(1973); JOSEPH PtREz, THE SPANISH INQUISITION: A HISTORY 9-12 (Janet Lloyd
trans., 2005); MIRI RUBIN, GENTILE TALES: THE NARRATIVE ASSAULT ON LATE
MEDIEVAL JEWS 128 (1999); GRETCHEN D. STARR-LEBEAU, IN THE SHADOW OF THE
VIRGIN: INQUISITORS, FRIARS AND CONVERSOS IN GUADALUPE, SPAIN 37-38 (2003).
83. ANDERSON,supra note 82, at 92.
84. GRAETZ,supra note 82, at 204-05.
85. PREz, supra note 82, at 9.
86. PERRY & SCHWEITZER, supra note 81, at 128.

510 WAKE FORESTLAW REVIEW [Vol. 44
enterprises in Seville and Barcelona, for instance, were ruined.

"Spain lost an incalculable treasure by the exodus of Jewish...
merchants, craftsmen, scholars, physicians, and scientists," wrote
the encyclopedic Will Durant, "and the nations that received them
benefitted economically and intellectually."88 Anti-Jewish preaching
in parts of Spain influenced a wide social segment of the population,
and the result was devastating both for the Jews who fled and for
the country that renounced them on dogmatic grounds. Elsewhere
in the ancient world, as historian Ben Kiernan has compellingly
documented, periodic mass massacres perpetrated against segments
of the native populations in Ireland, North and South America, and
Australia were likewise influenced by widely disseminated
dehumanizing statements. 9
The spread of ethnic and racial hatred continues to elicit
violence throughout the modern world. The dissemination of
ethnically incitable messages has precipitated tribal clashes in
Kenya.90 In Rwanda, ethnic stereotyping and repeated media calls
for the extermination of Tutsi led to a massive genocide perpetrated
against that group. 9'
Arab racial hate propaganda in the Sudan has catalyzed a
government-sponsored attempt to "cleanse" black Africans in
Darfur, Sudan." Likewise, in the Democratic Republic of the Congo
the government has relied on the incitement of ethnic hatred,
creating a culture where ethnic murder is a routine militia
practice. In the Arab world, terror organizations like Hamas and
Hizballah spread hatred against Jews without any interference from
87. ANDERSON,supra note 82, at 92.

88. 6 WILL DURANT,THE STORY OF CIVILIZATION 220 (1957). Durant further
discusses Spain's economic loss caused by the Muslim expulsion from Castile
and Le6n. See id. at 220.
89. KIERNAN,supra note 80, at 77-100, 187-212, 219-48, 252, 276-309.
90. BINAIFER NOWROJEE, HUMAN RIGHTS WATCH, FAILING THE INTERNALLY
DISPLACED: THE UNDP DISPLACED PERSONS PROGRAM IN KENYA 61-63 (1997);
(2002).
JOHN OUCHO, UNDERCURRENTS OF ETHNIC CONFLICT IN KENYA 90
91. ANTHONY CORTESE, OPPOSING HATE SPEECH 45-46 (2006); Charity
Kagwi-Ndungu, The Challenges in Prosecuting Print Media for Incitement to
Genocide, in THE MEDIA AND THE RWANDA GENOCIDE 330, 339-40 (Allan
Thompson ed., 2007).
92. BRIAN STEIDLE & GRETCHEN STEIDLE WALLACE, THE DEVIL CAME ON
HORSEBACK: BEARING WITNESS TO THE GENOCIDE IN DARFUR xvii (2007);
Mahgoub El-Tigani Mahmoud, Inside Darfur: Ethnic Genocide by a Governance
Crisis, 24 COMP.STUD. S. ASIA, AFR. & MIDDLE E. 3 (2004); Save Darfur, Darfur
Update n.3 (Oct. 2007), http://www.savedarfur.org/newsroom/policypapers
/september briefing-paper-thegenocide-in-darfur (last visited Mar. 30, 2009).
93. See generally 1 DEMILITARIZATION AND PEACE-BUILDING IN SOUTHERN
AFRICA 113 (Peter Batchelor & Kees Kingma eds., 2004); CHRISTIAN P.
SCHERRER, GENOCIDE AND CRISIS IN CENTRAL AFRICA: CONFLICT ROOTS, MASS
VIOLENCE, AND REGIONAL WAR 283 (2002). The current Democratic Republic of
the Congo's Constitution criminalizes the incitement to ethnic hatred. 2006
CONST. art. 10 (Dem. Rep. Congo).

several governments, including Egypt, Syria, Lebanon, and Saudi

Arabia. 94 School texts that are "written and produced by Saudi
government" teach children to kill Jews and to hate Christians and
Jews.95
Hate propaganda in these countries is far more virulent than it
is in the United States; nevertheless, a democracy committed to the
protection of individual rights does not run afoul of free speech
principles by criminalizing group incitement that has so globally
proven to influence harmful social movements.
A First Amendment theory, as the Supreme Court made clear in
Virginia v. Black, must examine whether there are historical
reasons to believe that offensive expression against an identifiable
group is likely to intimidate reasonable audiences. Robert Post's
argument about the undemocratic nature of hate speech regulation
regards "the function of public discourse" to be the reconciliation of
"the will of individuals with the general will. Public discourse is
thus ultimately grounded upon a respect for individuals seen as 'free
and equal persons."' 97 He emphasizes democracy's central obligation
to protect private "autonomous wills."9" His insightful
characterization, however, captures only part of the raison d'etre of
democracy; on a more community-oriented level, that system of
governance serves to protect the overall well-being of the polity
against the wanton call for discriminatory conduct or violence. And
Black explicitly sanctions states' use of historical records to identify
symbolism that is likely to terrorize the populace and, therefore,
detract from the common good. 99 This development in First
Amendment jurisprudence indicates that there is more to democracy
than self-determination.
Post's most recent statement on hate speech does not address
Black, even though the chapter was written after the Court
rendered its decision. 100 He connects the expression of hate to
"'extreme' intolerance and 'extreme' dislike."' ' This description,
while correct, does not account for the connection between hate
speech and extreme conduct. While the Constitution does not
authorize laws against negative emotions, speech that is
substantially likely to cause discriminatory harm, especially
94. RAPHAEL ISRAELI, ISLAMIKAZE: MANIFESTATIONS OF ISLAMIC

MARTYROLOGY 453 (2003).
95. Anne Applebaum, Op-Ed., The Saudi Guide to Piety, WASH. POST, July
22, 2008, at A21.
96. See supra text accompanying notes 39-44.
97. Post, supra note 7, at 284 (quoting John Rawls, Justice as Fairness:
PoliticalNot Metaphysical, 14 PHIL. & PUB. AFF. 223,230(1985)).
98. Id. (quoting Rawls, supra note 97, at 230).
99. Virginia v. Black, 538 U.S. 343, 352-60 (2003).
100. Robert Post, Hate Speech, in EXTREME SPEECH AND DEMOCRACY (Ivan
Hare & James Weinstein eds., forthcoming 2009) (on file with the author).
101. Id.

violence, can be regulated without infringing on the fundamental

principles of democracy.
The First Amendment is designed to allow for open debate,
encompassing popular, controversial, and unpopular points of view.
In and of itself, speech is a neutral medium that can just as easily
promote fascism as democracy, justify genocide as it does the equal
enjoyment of civil rights. Hate messages can sway attitudes by
playing into existing derogatory racial paradigms and pejorative
attitudes. Thev can establish ties between supremacists as well as
develop recruil ment directed at youths. Misethnic speech is an
essential component of hate group recruitment, drawing on
prejudice and fear to attract followers. As such, it is unrelated to
the open debate that the marketplace of ideas metaphor champions.
Ethnically or racially threatening diatribe is intended to
undermine democratic inclusiveness by communicating aggression
and influencing behavior. 10 2 Hate speakers aim to gain supporters
who share a vision of intolerance and manifest hostility 10 3 rather than
to engage listeners in intellectual or political debate.
Given the many instances when symbols like cross burning
have been used to incite violence,"4 there is reason to think that the
regulation of hate messages implicates legitimate democratic
concerns for preserving civility. Hate propaganda not only spreads
aggression and enmity, it can also be instrumental for racist and
ethnocentric groups to gain political office." 5 In light of this danger,
the United Nations' Universal Declaration of Human Rights
recognizes that democracies can place certain limitations on
individuals' right of self-determination in order to preserve public
order."6 The state need not sit idly by while the fundamental
freedoms of democracy are exploited by powerful social forces bent
102. Diane F. Orentlicher, Criminalizing Hate Speech in the Crucible of

Trial: Prosecutor v. Nahimana, 21 AM. U. INT'L L. REV. 557, 588 (2006); john a.
powell, As Justice Requires /Permits: The Delimitation of Harmful Speech in a
Democratic Society, 16 LAw & INEQ. 97, 143-44 (1998).
103. Helen Ginger Berrigan, "Speaking Out" About Hate Speech, 48 LOy. L.
REV. 1, 2 (2002) ("The purpose of hate speech is to promote inequality and
intolerance."); Ronald Turner, Hate Speech and the First Amendment: The
Supreme Court's R.A.V. Decision, 61 TENN. L. REV. 197, 226 (1993) ("Hate
speech is more than intolerance; it is direct and open hostility and the
manifestation of racism, sexism, and other 'isms.'").
104. Black, 538 U.S. at 389-95 (Thomas, J., dissenting).
105. David Kretzmer, Freedom of Speech and Racism, 8 CARDOZO L. REV.
445,464, 480 (1987).
106. Universal Declaration of Human Rights, G.A. Res. 217A (III), at art. 29,
U.N. Doc. A/810 (Dec. 10, 1948)
In the exercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.

20091 DIGNITY AND SPEECH 513
on undermining justice and the common good. 10 7 While the United

States Constitution protects freedom of speech, "it is not a suicide
pact." 08
A democracy is a quilt of individuals sown together by principles
and laws. Each person adds color and contributes to its overall
pattern. When propagandists undo the threads that bind all the
separate parts, the entire network of public safety loosens. Hate
speech increases social discord.'0 9 The claims of individuals who
wish to call for the mutilation, degradation, murder, or oppression of
identifiable groups are not as convincing as the state's interest in
maintaining the peaceful coexistence of groups living in a pluralistic
society."
When supremacist expression is employed to terrorize others
from participating in the privileges of an open society, such as
voting and traveling, it is more than merely offensive."' It
107. See Terminiello v. Chicago, 337 U.S. 1, 24 (1949) (Jackson, J.,

dissenting) (explaining that disorderly conduct statutes are meant to prevent
demagogues, such as those using fiery anti-Semitic speeches, from using "terror
tactics to confuse, bully and discredit those freely chosen governments" and
from causing "people [to] lose faith in the democratic process"); Mary Ellen
Gale, On Curbing Racial Speech, 1 RESPONSIVE COMMUNITY 47, 48-49 (1991)
(asking rhetorically whether "we watch-and even applaud-when cultural and
constitutional tools intended to plow the social ground for planting seeds of
tolerance and diversity instead are beaten into swords by bigots and wielded to
injure or destroy the fragile hopes and rights of historically despised
minorities?").
108. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (stated in the
context of draft evasion).
109. Jack M. Battaglia, Regulation of Hate Speech by Educational
Institutions:A Proposed Policy, 31 SANTA CLARA L. REV. 345, 373 (1991) ("Hate
speech produces in the target a range of mental and emotional distress,
including feelings of guilt, shame, anxiety, fear, vulnerability, inferiority,
inadequacy, and personal degradation."); John T. Nockleby, Hate Speech in
Context: The Case of Verbal Threats, 42 BUFF. L. REV. 653, 676-77 (1994);
Richard Delgado, Toward a Legal Realist View of the First Amendment, 113
HARv. L. REV. 778, 791-92 (2000) (reviewing STEPHEN H. SHIFFRIN, DISSENT,
INJUSTICE, AND THE MEANINGS OF AMERICA (1999)) ("Stereotype anxiety...
afflicts minorities alone and is a product of hate speech, belittlement, and other
forms of negative social characterization.").
110. Steven J. Heyman, Righting the Balance: An Inquiry into the
Foundationsand Limits of Freedom of Expression, 78 B.U. L. REV. 1275, 1384-
85 (1998).
111. Owen M. Fiss, The Supreme Court and the Problem of Hate Speech, 24
CAP. U. L. REV. 281, 287-91 (1995); Matthew Silversten, Note, What's Next for
Wayne Dick? The Next Phase of the Debate over College Hate Speech Codes, 61
OHIO ST. L.J. 1247, 1256 (2000). Burning a cross on a black family's lawn raises
autonomy issues other than just those about the free speech of the actor. Hate
speech engenders personal safety concerns in outgroup members, thereby
inhibiting them from freely traveling in their own communities. Sometimes,
fearing for their safety, minorities are forced to relocate. After a cross has been
burnt on their lawn, a black family is likely to be leery about approaching its
own house. The spread of bigotry diminishes autonomy.

threatens listeners and serves to organize social groups that espouse

exclusionary, rather than democratic, ideologies." 2
Hate speech poses a long-term threat to the social well-being of
a democracy that differs from the immediate threat of harm
associated with fighting words.113 Over time, popular prejudices can
become normal features of local or even national discourse.14 An
example of the phenomenon is the Arabic "abd." The word means
both a black male and a servant or slave. 115 Thus, both referents are
merged in countries, like Mauritania and the Sudan, where black
slavery persists." 6 Nothing in Virginia. v. Black indicates that the
cross burning in that case threatened to incite an immediate breach
of the peace. '7 As the great psychologist of prejudice, Gordon W.
Allport described, "prolonged and intense verbal hostility always
precedes a riot."" He illustrated this point through a historical
example:
Although most barking (antilocution) does not lead to biting,

yet there is never a bite without previous barking. Fully
seventy years of political anti-Semitism of the verbal order
preceded the discriminatory Niirnberg Laws passed by the
Hitler regime. Soon after these laws were passed the violent
program of extermination began. Here we see the not
infrequent progression: antilocution - discrimination ->...
violence."9
Slurs are disseminated by many media, including news print,
schools, music, and movies.
112. L.W. SUMNER, THE HATEFUL AND THE OBSCENE: STUDIES IN THE LIMITS OF
FREE EXPRESSION 162 (2004); see also Carolyn Petrosino, Connecting the Past to
the Future: Hate Crime in America, in HATE AND BIAS CRIME: A READER 1, 21
(Barbara Perry ed., 2003).
113. Chaplinsky v. New Hampshire, 315 U.S. 568, 572; Steven H. Shiffrin,
Racist Speech, Outsider Jurisprudence, and the Meaning of America, 80
CORNELL L. REV. 43, 80 (1994).
114. See Luis E. Chiesa, Outsiders Looking In: The American Legal
Discourse of Exclusion, 5 RUTGERS J.L. & PUB. POL'Y 283, 293 n.29 (2008); Terry
Smith, Speaking Against Norms: Public Discourse and the Economy of
Racializationin the Workplace, 57 AM. U. L. REV. 523, 535 (2008).
115. ARABIC-ENGLISH DICTIONARY 664-65 (2005); see also BERNARD LEWIS,
RACE AND SLAVERY IN THE MIDDLE EAST: AN HISTORICAL ENQUIRY 22, 56-57, 92,
95 (1990); KENNETH LITTLE, URBANIZATION AS A SOCIAL PROCESS: AN ESSAY ON
MOVEMENT AND CHANGE IN CONTEMPORARY AFRICA 71 (2004); Leon Carl Brown,
Color in Northern Africa, in COLOR AND RACE 186, 193 (John Hope Franklin ed.,
1968).
116. FRANCESCA DAVIS DIPAZZA, SUDAN IN PICTURES 49 (2006); Runoko
Rashidi, The Global African Community History Notes: Racial Struggle in
Mauritania, http://www.cwo.com/-lucumi/mauritania.html (last visited Mar. 30,
2009).
117. See Chaplinsky, 315 U.S. at 572 (articulating the fighting words
doctrine).
118. GORDON W. ALLPORT, THE NATURE OF PREJUDICE 60 (1979).
119. Id. at 57.

Often, preconceived animosities are coupled with spurious

accusations that can spread like wildfire through communities
harboring misethnic attitudes. 121 Since medieval times, mobs have
often accused Jews of kidnapping Christian children, crucifying
them, and using their blood as an ingredient in Passover matzah. 2'
This myth was often repeated to incite anti-Semitic mobs. 122 All
American Indians were reputed to be brutal savages who killed
frontier people, providing a rationalization for mass extermination
and land misappropriation.' Lynch mobs in the United States were
often riled up by allegations of arson, or that a black man had raped
a white woman or a black man argued with a white man. 24 These
accusations were unquestioned by riotous crowds of individuals who,
even though they had grown up in a democratic culture, had been
120. The Constitutional Court of Hungary has made a similar point:

The power of words was noted already in the 1878 Codex Csemegi
whose accompanying ministerial annotation stated the following: "The
free communication of ideas, to which mankind owes its greatest
achievements, becomes just as dangerous as fire, which gives light
and warmth, but which, when raging uncontrollably, very often
becomes the cause of great misfortune, much suffering and
destruction."
Alkotm4nybir6sdg [Constitutional Court] May 18, 1992, translatedin 2 E. Eur.
Case Rep. Const. L. 8, 15 (1995) (Hung.).
121. MAX I. DIMONT, JEWS, GOD AND HISTORY 240-41 (2d ed., 2004); RONALD
FLORENCE, BLOOD LIBEL: THE DAMASCUS AFFAIR OF 1840 (2004); RUTH GAY, THE
JEWS OF GERMANY: A HISTORICAL PORTRAIT 26-27 (1992); RAPHAEL ISRAELI,
POISON: MODERN MANIFESTATIONS OF A BLOOD LIBEL 21 (2002); TONI L. KAMINS,
THE COMPLETE JEWISH GUIDE TO FRANCE 6-8 (2001); DENNIS PRAGER & JOSEPH
TELUSHKIN, WHY THE JEWS?: THE REASON FOR ANTISEMITISM 81-84 (2003).
122. EMIL MuRAD, THE QUAGMIRE 252 (1998); TADEUSZ PIOTROWSKI, POLAND'S
HOLOCAUST: ETHNIC STRIFE, COLLABORATION WITH OCCUPYING FORCES AND
GENOCIDE IN THE SECOND REPUBLIC, 1918-1947, at 135 (1998) ("Just before the
pogrom [in Kielce, Poland] ... vicious rumors of blood-libel, so characteristic of
Russian-inspired pogroms, and of missing children were circulated."); SHULAMIT
VOLKOV, GERMANS, JEWS, AND ANTISEMITES: TRIALS IN EMANCIPATION 54 (2006)
("[Bilood-libel suits often preceded pogroms in the various parts of Europe. In
these cases, an accusation of murder perpetrated by Jews against a
Christian... was used for inciting the mob.").
123. KIERNAN, supra note 80, at 318-30. For early claims of Native
American savagism, see SAMUEL PURCHAS, 19 HAKLUYrUs POSTHUMUS OR
PURCHAS His PILGRIMES: CONTAYNING A HISTORY OF THE WORLD IN SEA VOYAGES
AND LANDE TRAVELLS BY ENGLISHMENT AND OTHERS 231 (James MacLehose &
Sons 1905) (1625); WILLIAM ROBERTSON, 1 HISTORY OF AMERICA 282-83 (1777);
Nova Brittania,in 1 TRACTS AND OTHER PAPERS RELATING PRINCIPALLY TO THE
ORIGIN, SETTLEMENT, AND PROGRESS OF THE COLONIES IN NORTH AMERICA, FROM
THE DISCOVERY OF THE COUNTRY TO THE YEAR 1776, no. 6, at 11 (Peter Force ed.,
1836).
124. JAMES H. MADISON, A LYNCHING IN THE HEARTLAND: RACE AND MEMORY
IN AMERICA 67-68 (2001); STEWART E. TOLNAY & E.M. BECK, A FESTIVAL OF
VIOLENCE: AN ANALYSIS OF SOUTHERN LYNCHINGS 1882-1930, at 47 (1995); Mary
E. Odem, Cultural Representations and Social Contexts of Rape in the Early
Twentieth Century, in LETHAL IMAGINATION: VIOLENCE AND BRUTALITY IN
AMERICAN HISTORY 353, 364 (Michael A. Bellesiles ed., 1999).

reared on the common assumption that blacks could not control

their sexual urges, especially in respect to white women.125
Japanese Americans living on the West Coast during World War II
were interned after being branded spies who were inimical to the
United States' war efforts. 126 The democratic process in states like
California and Washington actually facilitated the use of anti-
Japanese hate speech to pass a series of discriminatory laws
preceding the internment. 127 The democratic electoral system was
also no barrier in Rwanda, where genocide followed repeated
democratic radio statements calling for the extermination of the
Tutsi minority. 2 s
The historical evidence that hate speech is critical to the
perpetration of violence is overwhelming. Expressions meant to
incite harm are not merely self-expressive, as Robert Post indicates.
They can influence some of the most destructive behavior. So, in
assessing the potential harm an instance of hate speech poses to
ordered democracy, a court's role is to look both at the context of the
expression and its historical significance.
Exhorting others to commit discriminatory acts threatens the
orderliness of a multi-ethnic, representative democracy. 29 Hate
speech provides the ideological ground for fascist and racist
organizations. It is a vital ingredient in any political movement
determined to harm outgroups. 3 Rather than being a catalyst for
discussion, hate propaganda promotes intergroup animosity and
foments social unrest. 31 Intimidating, bigoted assertions exploit
125. See Peter W. Bardagio, Rape and the Law in the Old South:
"Calculatedto excite indignation in every heart," 60 J.S. HIST. 749, 752 (1994);
James W. Vander Zanden, The Ideology of White Supremacy, 20 J. HIST. IDEAS
385, 401 (1959).
126. JACOBUS TENBROEK ET AL., PREJUDICE, WAR AND THE CONSTITUTION 262-
65, 302 (1954); TSESIS, supra note 70, at 231-37; Eugene V. Rostow, Our Worst
Wartime Mistake, HARPER'S MAG., Sept. 1945, at 193-94; see also Raymond
Leslie Buell, Some Legal Aspects of the Japanese Question, 17 AM. J. INT'L L. 29,
36 (1923); Oliver C. Cox, The Nature of the Anti-Asiatic Movement on the Pacific
Coast, 15 J. NEGRO EDUC.603,603 (1946).
127. ROGER DANIELS, ASIAN AMERICA: CHINESE AND JAPANESE IN THE UNITED
STATES SINCE 1850, at 116-17, 138 (1988); K.K KAWAKAMI, THE REAL JAPANESE
QUESTION 79-102 (1921); Raymond Leslie Buell, The Development of the Anti-
JapaneseAgitation in the United States, 37 POL. SCI. Q. 605, 608-09, 617 (1922).
128. Alison Des Forges, Call to Genocide: Radio in Rwanda, 1994, in THE
MEDIA AND THE RWANDA GENOCIDE 41, 42-43 (Allan Thompson ed., 2007);
Darryl Li, Echoes of Violence: Considerations on Radio and Genocide in
Rwanda, in THE MEDIA AND THE RwANDA GENOCIDE 90, 97-98 (Allan Thompson
ed., 2007).
129. See Irwin Cotler, Racist Incitement: Giving Free Speech a Bad Name, in
FREEDOM OF EXPRESSION AND THE CHARTER 249, 254 (David Schneiderman ed.,
1991).
130. David Kretzmer, Freedom of Speech and Racism, 8 CARDOzO L. REV.
445, 463 (1987).
131. See Cass R. Sunstein, Words, Conduct, Caste, 60 U. CHI. L. REV. 795,
797 (1993). The Israeli Supreme Court similarly has held that both "hate

common stereotypes to degrade the hated "other."1 2 Ethnocentric

ideology relies on overgeneralizations about a rejected outgroup,
depicting it as not having the rights common to all members of a
democracy. 133 Not only do stereotypes rely on readily recognizable
prejudices, they also dehumanize members of the targeted groups by
depicting them as born slaves, sexual predators, savages, insects,
and brutes. T
This form of vilification empowers supremacist groups by
depicting the objects of hatred as pathetic individuals against whom
acts or aggression are either normal or expected. Disparagement
based on historically recognizable hate symbolism is meant 35 to depict
an entire class of society as unworthy of equal treatment.1
Painting sinister caricatures that advocate violence significantly
increases the likelihood of supremacist aggression.3 Hate symbols,
like burning crosses and swastikas, are antidemocratic because they
are meant to deny that entire classes of persons have the rights of37
conscience, freedom of expression, religion, culture, and intimacy.
Paradigms that subordinate individuals-for instance, those that
denominate Indians as savages or blacks as uncontrollably
lascivious-become dangerous to society when they are not merely
opinionated statements but intentionally used to incite acts of civil
or political inequality. Such paradigms aim to sanction moral and
economic oppression.138 The claim that blacks would corrupt a well-
ordered democracy was often invoked to prevent them from
speech and anti-democratic speech" are not part of the "'process of investigating
the truth.'" Avi Weitzman, A Tale of Two Cities: Yitzhak Rabin'sAssassination,
Free Speech, and Israel's Religious-Secular Kulturkampf, 15 EMORY INT'L L.
REV. 1, 28-29 (2001) (quoting H.C. 73/75, "Kol Ha'am" Co. Ltd. v. Minister of
the Interior, 7 P.D. 871 (1953), translatedin 1 SELECTED JUDGMENTS 90(1962)).
132. See RODERICK STACKELBERG, HITLER'S GERMANY: ORIGINS,
INTERPRETATIONS, LEGACIES 42 (1999).
133. See Daniel J. Levinson, Study of Ethnocentric Ideology, in THE
AUTHORITARIAN PERSONALITY 102, 147 (T.W. Adorno et al. eds., 1950).
134. Susan Benesch, Vile Crime or Inalienable Right: Defining Incitement to
Genocide, 48 VA. J. INT'L L. 485, 520 (2008); Richard Delgado & David Yun,
Neoconservative Case Against Hate-Speech Regulation-Lively, D'Souza, Gates,
Carter,and the Toughlove Crowd, 47 VAND. L. REV. 1807, 1813 (1994); see also
EHRLICH, supra note 45, at 21; TEuN A. VAN DIJK, COMMUNICATING RACISM:
ETHNIC PREJUDICE IN THOUGHT AND TALK 23-24 (1987).
135. See Martha Minow, Regulating Hatred: Whose Speech, Whose Crimes,
Whose Power?-An Essay for Kenneth Karst, 47 UCLA L. Rev. 1253, 1257
(2000).
136. Albert Bandura et al., Disinhibitionof Aggression Through Diffusion of
Responsibility and Dehumanization of Victims, 9 J. RES. PERSONALITY 253
(1975).
137. See Steven J. Heyman, Introduction to HATE SPEECH AND THE
CONSTITUTION vii (Steven J. Heyman ed., 1996).
138. See PAuL GILROY, AGAINST RACE: IMAGINING POLITICAL CULTURE BEYOND
THE COLOR LINE 281 (2000); Richard Delgado & David H. Yun, Pressure Values
and Bloodied Chickens: An Analysis of PaternalisticObjections to Hate Speech
Regulation, 82 CAL. L. REV. 871, 882 (1994).

139
participating in representative government.
The meaning of hate speech is connected to the social history of
a people. As Justice Thomas pointed out in his dissent in Black, the
burning cross, like other cultural symbols of hate, "instills in its
victims well-grounded fear of physical violence" because it draws
from culturally charged threats. 4 0 Linguists, like Pierre Bourdieu,
have pointed out that language is not vacuous. Linguistic practices
draw on socio-historical content to establish acceptable
interpersonal behavior. 4 ' Speech acts that rely on culturally
recognized images of subordination are not merely the sentiments of
a single person. They rely on the symbolic efficacy of group slogans 14 2
to express acceptable conduct toward a named class of individuals.
Group defamation, which the Court in Beauharnais v. Illinois
upheld to be sanctionable under the First Amendment, 4 3 assigns
certain negative traits to specific groups of people. Poles are said to
be ignorant, rural, and incompetent; Jews to be materialistic, rich,
and conniving; and blacks to be animalistic, lazy, and
promiscuous. 4 4 Besides mere name calling, hate speech also labels
certain groups as antisocial because of their traits, presenting them
to be outsiders in their own country of citizenship. For instance,
Jews might be considered incapable of participating in democracy
because they engage in the ritual murder of children, and Native
139. Here I am, thinking of disenfranchisement movements that virtually

shut black voters out of state and federal elections at the end of the nineteenth
and early twentieth centuries. TSESIS, supra note 70, at 132-42. In South
Carolina Senator Benjamin R. "Pitchfork Ben" Tillman led the drive to
eliminate blacks from voting openly. Tillman recognized that violence was not
enough; discriminatory political advocacy was essential to any long-term
changes to the post-Reconstruction political system. Id. at 136. For an example
of Tillman's use of hate rhetoric, see 56 CONG. REC. 2245 (daily ed. Feb. 26,
1900) (statement by Rep. Tillman) ("Therefore we have been confronted by the
condition of a large, ignorant debased vote .... That vote to-day stands as a
menace to the freedom, to the purity of the ballot box, to the purity and honesty
of elections, to the decency of government."); see also Ben Tillman: Memories of
an Agrarian Racist, 32 J. BLACK HIGHER EDUC. 48, 49 (2001) (noting Tillman's
invective against a black delegate to South Carolina's constitutional convention:
"You dirty black rascal, I'll swallow you alive."). In the early twentieth century,
the Aryanization of Germany and the depiction of Jewish culture as depraved
eventually drove Jews out of all political, cultural, and educational institutions
there.
140. Virginia v. Black, 538 U.S. 343, 391 (2003) (Thomas, J., dissenting).
141. John B. Thompson, Introduction to PIERRE BORDIEU, LANGUAGE AND
SYMBOLIC POWER 5 (John B. Thompson ed., Gino Raymond & Matthew
Adamson trans., 1991).
142. See PIERRE BOuRDIEu, LANGUAGE AND SYMBOLIC POWER supra note 141,
at 105-06; DAVID MILNER, CHILDREN AND RACE 75 (1983); David L. Hamilton &
Tina K. Trolier, Stereotypes and Stereotyping: An Overview of the Cognitive
Approach, in PREJUDICE, DISCRIMINATION, AND RACISM 127, 132-33 (John F.
Dovidio & Samuel L. Gaertner eds., 1986).
143. 343 U.S. 250, 266 (1952).
144. MILTON KLEG, HATE PREJUDICE AND RACISM 176 (1993).

Americans might be labeled drunks who are unworthy of self-

determination because of their cultural infancy.'45
Speech, then, is structured in a particular syntax having a
semantic value that is intrinsically cultural.146 Through a long
history of slavery and Jim-Crowism in this country, blacks came to
represent evil. 47 Gays and lesbians have been thought of as
deviants, too scary to be alone with children."8 4 And, more
recently,
Arabs have come to be linguistically linked with all manners of
terrorism. 9 The Internet has made it increasingly
50 easier to spread
these effectively degrading characterizations.
As the popular psyche assigns negative traits to certain groups,
internalized negative stereotypes play an increasing role in
personality development and dispositional characteristics.'
Dispositions, in turn, "generate practices, perceptions and attitudes"
toward a disparaged group."' A danger to democracy from hate
speech is that, through repetition, the violent paradigm of treatment
toward disparaged groups can become inculcated into destructive
social practices. In this way, the internalization of hate messages
can not only affect immediate conduct but also inform habitual
behavior toward social groups. Thereby, an individual can be
spooked by the mere sight of a black person, without any indication
of danger, perceive a drunk at the sight of a sober Mexican
American, or disparage the intelligence of a person because of her
gender. Prejudices are structured not merely on the percipients'
epistemic knowledge but also on cultural ideation."'
Even in a state dedicated to self-determination, which Robert
Post demonstrates is an essential component of democracy, the
passionate repetition of violent messages can lead to brawls and
even 54 Suppressing aggressive
social riots.'
order, not, hate suppression
as Post claims, the mere speech aimsofto"extreme"
preserve
145. See id. at 179-80.

146. FRANTz FANON, BLACK SKIN, WHITE MASKS 17-18 (Charles Lam
Markmann trans., 1986).
147. Cf id. at 188-89 (making a similar point about European prejudice);
Lloyd T. Delany, Other Bodies in the River, in BLACK PSYCHOLOGY 595 (Reginald
L. Jones ed., 1991) (detailing psychological statement of association between
blackness and evil).
148. Ashley Surdin, Gay Youth's Slaying Spurs Call for Tolerance, WASH.
POST, Mar. 29, 2008, at A2.
149. See Mrinalini Reddy, Muslims on TV, No Terror in Sight, N.Y. TIMES,
Nov. 11, 2007, 2 (Magazine), at 30; Shibley Telhami, Cartoon Villains, N.Y.
TIMES, Jan. 6, 2008, at 13 (reviewing PETER GOTTSCHALK & GABRIEL
GREENBERG, ISLAMOPHOBIA: MAKING MUSLIMS THE ENEMY (2007)).
150. Tsesis, supra note 50, at pts. I & II.
151. BOURDIEU, supra note 142, at 12.
152. Id.
153. See GEORGE EATON SIMPSON & J. MILTON YINGER, RACIAL AND CULTURAL
MINORITIES: AN ANALYSIS OF PREJUDICE AND DISCRIMINATION 64 (4th ed. 1972);
ELISABETH YOUNG-BRUEHL, THE ANATOMY OF PREJUDICES 347-48 (1996).
154. ALLPORT, supra note 118, at 57-61.

dislikes. 55 The "[r]espect for the equality of diverse communities" in

America,'56 which Post recognizes, rather counsels toward
prohibitions against speech that has historically been proven to
have a substantial causal connection to discriminatory violence. As
sociologist Milton Kleg has explained:
Stereotypic beliefs form the rationale for feelings of

disdain and disparagement. When tied to prejudiced
attitudes, stereotypes help create a number of behaviors
ranging from avoidance to violence. Our review of stereotypes
indicates that one's perceived reality is not reality itself, but is
a mixture of fact and fiction, if not total fiction. Yet when
people act upon these stereotypes, the actions are carried out
in the real world, not in their stereotypic world ....
The sources of prejudice are varied. But regardless of how

and why prejudices form, the fact remains that, like seeds,
prejudice takes root grows, and blossoms into what may
become violent hate.'gs
Ethnocentric speech serves to both establish individual pride in
a group's membership and to maintain a sense of group entitlement
against others. 5 8 There is no logical connection between the
overgeneralizations expressing group hatred and the individuated
reality of the victims, but they render the objects of animosity
politically vulnerable. 9 Whether hatred is directed at Asians, Jews,
blacks, or Catholics, the unchecked virulent verbal racism tends to
alienate these groups from the body politic. Hate speech is a
rallying cry that aims to subvert democracy by persuading
1 60
listeners
to treat disparaged groups unequally and unfairly.
As Richard Delgado and Jean Stefancic have pointed out, verbal
racial attacks differ from ordinary insults because they negatively
impact individuals and society at large. 61 Where victims lack any
legal redress against intimidating hate speech,2 their legitimate fears
of harm are ignored in favor of demagoguery.
This Section's historical and linguistic theoretical musings,
155. Robert Post, Religion and Freedom of Speech: Portraitsof Muhammad,

14 CONSTELLATIONS 72, 79 (2007).
156. Id. at 82.
157. KLEG, supra note 144, at 155.
158. Id. at 165.
159. See JAMEs PARKES, ANTISEMITISM 17-18 (1963).
160. See T.W. Adorno, Prejudice in the Interview Material, in THE
AUTHORITARIAN PERSONALITY, supra note 133, at 653 (discussing the
undemocratic nature of the authoritarian personality); DANIEL T. RODGERS,
CONTESTED TRUTHS: KEYwoRDS IN AMERiCAN POLITICS SINCE INDEPENDENCE 8-11
(1987) (concerning the effectiveness of political rhetoric).
161. RICHARD DELGADO & JEAN STEFANCIC, MUST WE DEFEND NAZIS?: HATE
SPEECH, PORNOGRAPHY, AND THE NEW FIRST AMENDMENT 7 (1997).
162. Id.

which were meant to address Post's challenge that the hate speech
debate address democratic theory, give a structural argument. I will
next analyze whether these ideas accurately reflect the regulation of
hate speech in existing democracies.
III. THE REGULATION OF HATE SPEECH BY DEMOCRACIES

Many democracies throughout the world consider free speech to
be a fundamental human right.'6 The common trend is,
nevertheless, to enforce criminal laws prohibiting the public
dissemination of discriminatory messages." 4 These policies are
driven by the conviction that hate speech tends to incite conduct
that is violent and otherwise harmful to human dignity. 165 A non-
exhaustive list of countries that have restricted hate speech
includes: Australia, Austria, Belgium, Brazil, Canada, Cyprus,
Denmark, England, France, Germany, India, Ireland, Israel, Italy,
Sweden, and Switzerland. 16 6 Nations that punish the use of hate
propaganda weigh orators' interests to the right of free expression
against both the dignitary harm to individuals and the collective
harm to pluralism. 67 In this area of law, countries that bar the use
of racially and ethnically incitable rhetoric tend to follow
international norms on civility to a greater extent than the United
States. The prevalent international trend to regulate hate speech is
grounded in what, to borrow Martha Nussbaum's description of
constitutional governance, is meant to "secure168 for all citizens the
prerequisites of a life worthy of human dignity."
Shortly after World War II, on December 9, 1948, the United
Nations General Assembly adopted the Convention on the
Prevention and Punishment of the Crime of Genocide.' 6 9 Signatory
states commit themselves to punishing the "[d]irect and public
163. See ANTHONY CORTESE, OPPOSING HATE SPEECH 15 (2006).

164. Id.
165. Id. at 16.
166. See, e.g., THOMAS DAVID JONES, HUMAN RIGHTS: GROUP DEFAMATION,
FREEDOM OF EXPRESSION AND THE LAW OF NATIONS 189-224, 259-313 (1998);
Kenneth Lasson, Holocaust Denial and the First Amendment: The Quest for
Truth in a Free Society, 6 GEO. MASON L. REV. 35, 72 n.286 (1997); Kathleen E.
Mahoney, Hate Speech: Affirmation or Contradictionof Freedom of Expression,
1996 U. ILL. L. REV. 789, 803; Alexander Tsesis, RegulatingIntimidating Speech,
41 HARV. J. ON LEGIS. 389, 396 (2004); Abigail Jones Southerland, Note, The
Tug of War Between First Amendment Freedoms of Antidiscrimination:A Look
at the Rising Conflict of Homosexual Legislation, 5 REGENT J. INT'L L. 183, 192
(2007).
167. Martha C. Nussbaum, Constitutions and Capabilities: "Perception"
Against Lofty Formalism, 121 HARv. L. REV. 4, 7 (2007).
168. Id.
169. Convention on the Prevention and Punishment of the Crime of
Genocide, G.A. Res. 260 (III), at 174, U.N. Doc. A/810 (Dec. 9, 1948), available
at http://untreaty.un.orgEnglish/CTC/ChIV lp.pdf.

incitement to commit genocide."17' Following a series of anti-Semitic

incidents, multiple U.N. member states also entered into the
Convention on the Elimination of All Forms of Racial
Discrimination, requiring parties to punish
all dissemination of ideas based on racial superiority or

hatred, incitement to racial discrimination, as well as all acts
of violence or incitement to such acts against any race or group
of persons of another colour or ethnic origin, and also the
provision of any assistance
7 to racist activities, including the
financing thereof. 1
The International Covenant on Civil and Political Rights is yet

another relevant international agreement. Article 20 of that
agreement requires "[any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or
violence" to be "prohibited by law."
Canada is one of the democratic states that has adopted
international hate speech standards in its domestic laws. That
nation guarantees the freedom of expression through the Canadian
Charter of Rights and Freedoms, which is its bill of rights. 74 The
Supreme Court of Canada has recognized that the three values
associated with the Charter's guarantee of expression are: (1)
seeking truth; (2) participating in "social and political decision-
making"; and (3) achieving "self-fulfillment and human flourishing"
in a pluralistic society. 1 ' The latter is very close to the concept of
170. Id. For a list of signatory states, see The Secretary-General, Report of
the Secretary-Generalon the Status of the Convention on the Prevention and
Punishment of the Crime of Genocide, delivered to the General Assembly, U.N.
Doc. A/51/422 (Sept. 27, 1996), available at http://www.un.org/documents
/ga/docs/51/plenary/a51-422.htm.
171. International Convention on the Elimination of All Forms of Racial
Discrimination, G.A. Res. 2106 (XX), at 48, U.N. GAOR 20th Sess., Supp. No.
14, U.N. Doc. A/6014 (Dec. 21, 1965), available at http://daccessdds.un.org
/docIRESOLUTION/GEN/NRO/218/69/IMG/NR021869.pdfOpenElement; see
also Egon Schwelb, The International Convention on the Elimination of All
Forms of Racial Discrimination, 15 INT'L & COMP. L.Q. 996, 997-1000 (1966)
(discussing events leading up to the adoption of the Convention).
172. International Covenant on Civil and Political Rights, G.A. Res. 2200
(XXI), 52-58, U.N. GAOR 21st Sess., Supp. No. 16, U.N. Doc. A/6316
(Dec. 16, 1966), available at http://daccessdds.un.org/docRESOLUTION/GEN
/NR0/005/03/IMG/NR000503.pdf?OpenElement.
173. Id. at 53. A list of signatory states appears at
http://treaties.un.orgPages/ViewDetails.aspx?src=TREATY&id=322&chapter=4
&lang=en (last visited Mar. 30, 2009).
174. Switzman v. Elbling, [1957] S.C.R. 285, 326 (Can.) ("The right of free
expression of opinion and of criticism, upon matters of public policy and public
administration, and the right to discuss and debate such matters, whether they
be social, economic or political, are essential to the working of a parliamentary
democracy such as ours.").
175. Regina v. Keegstra, [1990] 3 S.C.R. 697, 728 (Can.).
2009] DIGNITY AND SPEECH 523
self-determination that Robert Post regards as being at the heart of

free speech guarantees. 176 Unlike Post, however, the Supreme Court
of Canada has determined that statutes punishing the spread of
hate speech are in accordance with those interests.'77 Canada has
found that safeguarding fundamental liberties is compatible with
"reasonable limits prescribed by law" that are necessary to maintain
"a free and democratic society." 178
What counts as a reasonable limitation on free speech was
defined in a Canadian Supreme Court case that upheld the
constitutionality of the Canadian Human Rights Act's prohibition
against the use of telephonic communications equipment to spread
group hatred. 79 Restrictions on hate propaganda, the Court noted,
rest on the serious threat it poses to society. The Court explained
that Parliament had passed the Act because
messages of hate propaganda undermine the dignity and self-

worth of target group members and, more generally,
contribute to disharmonious relations among various racial,
cultural and religious groups, as a result eroding the tolerance
and open-mindedness that must flourish in a multicultural
society which is committed to the idea of equality. 8
The law had achieved the "necessary balance" between a multi-
ethnic society's need to protect dignity and an individual's right to
self-expression. 8' This decision was available a year before Robert
Post made his call for an inquiry into whether hate speech was
compatible with democratic institutions. 8 '
The Supreme Court of Canada further upheld a human rights
ordinance against the spread of propaganda premised on a roup's
racial, religious, or ethnic inferiority in Regina v. Keegstra.' The
majority decision found that hate propaganda was not only an
affront to individual dignity, much as defamatory statements might
be, but also noted the potential risk "that prejudiced messages will
gain some credence, with the attendant result of discrimination, and
perhaps even violence, against minority groups in Canadian
society."' 4 Canadian restrictions on such potentially harmful
messages, the Court went on to say, fall within the ambit of the
country's human rights obligations under the International
Convention on the Elimination of All Forms of Racial Discrimination

177. Keegstra, 3 S.C.R. at 728.
178. CAN. CHARTER OF RIGHTs AND FREEDOMS, Constitution Act, 1982, pt. I,
1.
179. Taylor v. Canadian Human Rights Comm'n, [19901 3 S.C.R. 892 (Can.).
180. Id. at 919.
181. Id. at 963-64.
183. See Regina v. Keegstra, [19901 3 S.C.R. 697, 699-700 (Can.).
184. Id. at 748.

and the International Covenant on Civil and Political Rights, both of

which guarantee freedom of speech but prohibit hate speech."
Canada is committed to the democratic principles of free expression,
but restricting speech that is "anathemic to democratic values" is
"not substantial."186
The use of the Internet to propagate criminally prohibited
messages, by the likes of hate purveyors Ernst Zundel and Heritage
Front,8 7 has posed a recent challenge in Canada. The Canadian
Human Rights Act of 1999 addressed that increasingly prevalent
phenomenon of cyberspace.'" The law punishes the repeated use of
telecommunications devices, including the Internet, to communicate
messages exposing persons "to hatred or contempt" based on their
"race, national or ethnic origin, colour, religion, age, sex, sexual
orientation, marital status, family status, disability [or] conviction
for which a pardon has been granted." 8 9 The most important
decision upholding the Act balances Canada's commitment to free
expression with its other human rights obligations.'9 0 The statute
prevents the dissemination of hate propaganda to promote "equal
opportunity unhindered by discriminatory practices."' 9'
The Canadian Supreme Court has consistently upheld laws that
restrict some virulent expressions in order to protect vulnerable9
groups against the use of hatred or deliberately false statements.1 2
Laws against hate defamation
can play a useful and important role in encouraging racial and

social tolerance which is so essential to the successful
functioning of a democratic and multicultural society. It
185. Id. at 751-52, 754-55.

186. Id. at 763-64.
187. Mary Gusella, Chief Comm'r, Canadian Human Rights Comm'n,
Opening Address at A Serious Threat: A Conference on Combating Hate on the
Internet and Section 13 of the Canadian Human Rights Act (Dec. 15-16, 2005),
in CANADiAN IssuEs, Spring 2006, at 4-7 (detailing Zundel's use of the Internet
to spread group defamation); Charlie Gillis, Righteous Crusaderor Civil Rights
Menace?, MACLEAN'S, Apr. 21, 2008, at 22 (concerning the Canadian Human
Rights Tribunal hearings about the Heritage Front's dissemination of hate
messages); Warren Kinsella, The Racist Face of SARS, MACLEAN'S, Apr. 14,
2003, at 60 (discussing the use of the Internet by a "supporter of the pro-Nazi
Heritage Front"); Jail for German Holocaust Denier, THE INDEP. (London), Feb.
16, 2007, at 24 (mentioning the conviction of Zundel for Holocaust denial).
188. Canadian Human Rights Act, R.S.C., ch. H-6, 13(1) (1999).
189. Id. 3(1), 13(1), 13(2).
190. Taylor v. Canadian Human Rights Comm'n, [1990] 3 S.C.R. 892 (Can.).
191. See id. at 894.
192. See, e.g., id. at 893-94 (upholding the Canadian Human Rights Act and
dismissing the appeal of appellants who distributed cards inviting people to call
a telephone number answered by recorded messages denigrating the Jewish
faith and people); Regina v. Keegstra, [1990] 3 S.C.R. 697, 698 (Can.)
(upholding sections 319(2) and 319(3)(a) of the Criminal Code and allowing the
government's appeal in its case against a teacher accused of "willfully
promoting hatred against an identifiable group").

achieves this goal by expressing the repugnance of Canadian

society for the willful publication of statements known to be
false that are likely to cause serious injury or mischief to193the
public interest which is defined in terms of Chartervalues.
Canadian law is consistent with the policies of many other
democracies. France, like the United States, regards "[t]he free
communication of ideas and opinions" to be "one of the most precious
of the rights of man."'94 France nevertheless prohibits "abuses of
this freedom."195 There, the emphasis is on the promotion of
democracy rather than on the naive libertarian belief, which is
commonly embraced in the United States, that truth will emerge
even when inflammatory statements are made about vulnerable
196 Fac 1 rsrcin
groups. France places restrictions on the use of hate speech and
even requires that Internet Service Providers "assist law
enforcement officers in eliminating online material that justifies
crimes against humanity, incites racial hatred or can be classified as
child pornography."1 97 This latter regulation seeks to prevent the
abuse of freedom of expression that is guaranteed under the
Declaration of the Rights of Man and of the Citizen, and the Law of
1881 on Freedom of the Press. 9" As is the case in the United States,
in France many forms of expression do not fall under the protection
of that value. Among the crimes against humanity in France is the
"incitement to discrimination, hatred and violence."1 99 While this
formulation differs from the American model, which requires
intentional intimidation and does not simply punish the spread of
false information about such crimes of humanity as the Holocaust,
the two laws are similar in their purpose of protecting democratic
order.2 0 0 France, like Canada, has legislatively and judicially
193. Zundel v. Regina [1992] 2 S.C.R. 731, 809-10 (Can.).

194. DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN art. 11 (F.R.
1789).
195. Id.
196. See Philip S. Cook, introductionto LIBERTY OF ExPRESSION 1, 5-6 (Philip
S. Cook ed., 1990) (discussing France's policy preference on speech).
197. Lyombe Eko, New Medium, Old Free Speech Regimes: The Historical
and Ideological Foundations of French & American Regulation of Bias-
Motivated Speech and Symbolic Expression on the Internet, 28 LOY. L.A. INT'L &
COMP. L. REv. 69, 102-03 n.208 (2006).
198. Id. at 104.
199. France in the United Kingdom, Freedom of Speech in the French
Media, http://www.ambafrance-uk.org(Freedom-of-speech-in-the-French.html
(last visited Mar. 30, 2009).
200. On the U.S. law, see supra text accompanying notes 17-44. For the
French law, see Law No. 90-615 of July 13, 1990, Journal Officiel de la
Rpublique Franaise [J.O.] [Official Gazette of France], July 14, 1990, art. 48-
1, p. 8333. For an unsuccessful challenge to the French law against Holocaust
denial, see Faurisson v. France, Decisions U.N. Human Rights Comm.,
Commc'n No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993 (1996), in Restrictions
on Freedom of Expression for Denial of the Holocaust Under the 1990 Gayssot
Act: Author's Conviction Justified, 18 HuM. RTS. L.J. 40 (1997).

addressed Robert Post's query about the compatibility of hate speech

and democracy.
Germany, like Canada and the other countries in this study,
guarantees "the right freely to express and disseminate" ideas
through its Constitution, known as the Basic Law for the Federal
Republic of Germany. 2' The same provision of the Basic Law
prohibits censorship. 20 2 On the other hand, the country's
constitution outlaws political20 parties that "undermine or abolish the
free democratic basic order." 1
Germany, like France and Canada, shows a striking concern
about violations of human dignity resulting from intimidating hate
speech. A German criminal provision prohibits the distribution or
supply of any "written materials ... which describe cruel or
otherwise inhuman acts of violence against human . .beings in a
manner expressing glorification or which downplays such acts of
violence or which represents the cruel or inhuman aspects of the
event in a manner which violates human dignity." 20 4 Moreover,
individual and group violators are subject to imprisonment for
attacking the human dignity of others by: (1) inciting people to hate
particular segments of the population; (2) advocating "violent or
arbitrary measures against them";200 and (3) "insulting them,
maliciously exposing them to contempt or slandering them." 06 With
the increasing popularity of the Internet, Germany has added a new
criminal provision penalizing the use of computer technology to
disseminate antidemocratic group propaganda.
The German Constitutional Court has reaffirmed the
constitutionality of such penal laws. One case arose when David
Irving, a well-known Holocaust denier, gave a speech to the
National Democratic Party of Germany. The German government
brought charges against him under the Public Assembly Act, which
prohibits meetings where the planned speeches constitute criminal
violations. The Constitutional Court upheld the Act, finding that it
does not violate Basic Law article 5(1)'s protection of publicly aired
opinions.20 The Court weighed competing democratic values,
concluding that "[i]f the [assumed facts] are demonstrably untrue,
201. Grundgesetz ffir die Bundesrepublik Deutschland [GG] [Basic Law]

May 23, 1949, art. 5(1) (F.R.G.), translated in BASIC LAW FOR THE FEDERAL
REPUBLIC OF GERMANY (Christian Tomuschat & David P. Currie trans., 2008).
202. Id.
203. Id. at art. 21.
204. Strafgesetzbuch [StGB] [Penal Code] Dec. 2007, 131(1) (F.R.G.),
translated in THE GERMAN CRIMINAL CODE: A MODERN ENGLISH TRANSLATION
116 (Michael Bohlander trans., 2008).
205. StGB 130(1).
206. StGB 130.
207. StGB 86.
208. DONALD P. KommERs, THE CONSTITUTIONAL JURISPRUDENCE OF THE
FEDERAL REPUBLIC OF GERMANY 383 (2d ed. 1997).

freedom of expression usually gives way to the protection of

personality."20 9 It also examined Holocaust denial against historical
facts, eyewitness accounts, and documentation, finding David
Irving's spurious comments unprotected by the Basic Law.210
Holocaust denial was found to be insulting to Jews. Others had "a
special moral responsibility" to respect that ethnic group's historical
sensibility.2 1' Denial of this event amounted to rejecting the
"personal worth" of the Jewish people and continuing discrimination
against them. 2
Among other German judicial opinions upholding the
constitutionality of hate propaganda laws was a 1994 case, decided
by the Constitutional Court, which ruled that freedom of speech was
not a defense available to groups propagating the "Auschwitz lie." 13
Later, in 1995, a Berlin state court convicted a leader of Germany's
neo-Nazi movement for "spreading racial hatred and denigrating the
state" by telling persons visiting the Auschwitz concentration camp
that the Holocaust was a fiction.214 On the other hand, the state
may not suppress the recitation of an interpretive opinion, such as
the belief that Germany was not at fault for starting World War 11.215
Germany's commitment to punishing the use of hate speech is
grounded in the first article of its Basic Law, which imposes a
political obligation on the state to "respect and protect" "[h]uman
dignity."2 16 Most Western nations, as one scholar pointed out, are
more attuned to the German model of "balancing human dignity and
freedom of 217expression... than to America's robust free speech
protection."
209. Id. at 384.

210. Id. at 385.
211. Id. at 386.
212. Id.
213. James J. Black, Free Speech & the Internet: The Inevitable Move
Toward Government Regulation, 4 RICHMOND J.L. & TECH. 1, 53, 56 (Winter
2007), available at http://1aw.richmond.edu/jolttv4i2/black.html (last visited
Mar. 30, 2009).
214. Lasson, supra note 166, at 76. See generally Eric Stein, History Against
Free Speech: The New GermanLaw Against the "Auschwitz"-andother-"Lies,"
85 MICH. L. REV. 277, 289-99 (1986) (providing a synopsis of German case law).
215. KOMMERS, supra note 208, at 387. For a general analysis of German
constitutional case law, see Rainer Hofmann, Incitement to National and Racial
Hatred: The Legal Situation in Germany, in STRIKING ABALANCE: HATE SPEECH,
FREEDOM OF EXPRESSION AND NON-DISCRIMINATION 159, 167-70 (Sandra Coliver
ed., 1992).
216. Grundgesetz ffir die Budesrepublik Deutschland [GG] [Basic Law], May
23, 1949, art. 1(1) (F.R.G.), translatedin BASIC LAW FOR THE FEDERAL REPUBLIC
OF GERMANY (Christian Tomuschat & David P. Currie trans., 2008), availableat
http://www.bundestag.de/interakt/infomat/fremdsprachigesmaterialdownloads
/ggEn~download.pdf.
217. Guy E. Carmi, Dignity-The Enemy from Within: A Theoretical and
ComparativeAnalysis of Human Dignity as a Free Speech Justification,9 U. PA.
J. CONST. L. 957, 988 (2007).

A British law criminalizes hateful propaganda referring "to

colour, race, nationality (including citizenship) or ethnic or national
origins."2 18 It requires prosecutors to prove either that a defendant
intended the abusive, threatening, or insulting words "to stir up
racial hatred" or that "having regard to all the circumstances racial
hatred is likely to be stirred up thereby." 19 Violations can occur in
either public or private places but not where the statements are
made in a dwelling to others within the same dwelling. 220 A 2006
amendment to the law prohibits the public or private assertion of
threats to stir up religious hatred;22 ' however, religious criticism-
even the expression of "antipathy, dislike, ridicule, insult or abuse of
particular religions or the beliefs or practices of their adherents"-
remains a protected form of expression. The Criminal Justice and
Immigration Act of 2008 added sexual orientation to the protected
223
categories.
Australia, which is a member of the British Commonwealth,
likewise prohibits the public assertion of hatred based on a group's
race, color, or national or ethnic origin.224 While the Australian
Constitution does not expressly mention the freedom of speech, it is
well-established as an implied constitutional right.2 Nevertheless,
in 2004 an Australian appellate court found that as a democratic
society the country may safeguard political pluralism and tolerance
by prohibiting the use of insulting, humiliating, or intimidating
statements that have a real chance of causing harm.22 ' This model
goes beyond the United States Supreme Court's ruling that statutes
against intimidating hate speech do not violate the right to free
expression,227 but the Australian model is instructive because its
support for hate speech regulations are more highly attuned to
democratic issues than the more libertarian-oriented American
218. Public Order Act, 1986, ch. 64, 17 (U.K.), available at

http://www.opsi.gov.uk/acts/actsl986/pdf/ukpga-19860064-en.pdf.
219. Id. 18(1).
220. Id. 18(2).
221. Racial and Religious Hatred Act, 2006, ch. 1, 29B (U.K.), available at
http://www.opsi.gov.uk/acts/acts2006/ukpga_20060001en1.
222. Id. 29J.
223. Criminal Justice and Immigration Act, 2008, c. 4, 74, sched.
16(a) (U.K.), available at http://www.opsi.gov.uk/acts/acts2008/pdf/ukpga
_20080004_en.pdf.
224. Bropho v. Human Rights & Equal Opportunity Comm'n (2004) 204
A.L.R. 761 para. 62 (Austl.).
225. See Lange v. Austl. Broad. Corp., 189 C.L.R. 520, 523-24 (1997)
(Austl.); Austl. Communist Party v. Commonwealth, 83 C.L.R. 1, 262-63 (1951)
(Austl.); Kathleen E. Foley, Australian Judicial Review, 6 WASH. U. GLOBAL
STuD. L. REV. 281, 313 (2007).
226. Bropho, 204 A.L.R. 761 para. 65.
227. Virginia v. Black, 538 U.S. 343, 362 (2003) (holding that a Virginia
statute banning cross burning with intent to intimidate did not violate the free
speech clause of the First Amendment).

jurisprudence.228
Scandinavian countries have likewise made the legislative
connection between incitement to harm and risks to civil society.
The Danish Penal Code prohibits anyone from intentionally
disseminating statements to a wide group of people that impart
"information threatening, insulting, or degrading a group of persons
on account of their race, colour, national or ethnic origin, belief or
sexual orientation."229 Unlike other countries' codes, there is no
mention of dignity rights, but Denmark's law implicates extreme
forms of degradation. The Danish Director of Public Prosecutions
explains that this provision requires narrow interpretation that does
not interfere with democratic society.n The law applies to anyone
who 'might provoke in someone serious fear for his own or other
persons' lives, health or well-being [or] threatens to commit a
punishable act. ' '23'
A conviction obtained under the Danish Act brings to mind the
United States Supreme Court's recent cross burning decision,
Virginia v. Black, finding that a cross burning statute with a
scienter element does not run afoul of the First Amendment.232 The
Eastern Division of the High Court of Denmark convicted
individuals who had burned a cross "in the road outside a house
they knew was inhabited by Turks," intending to intimidate
members of a Turkish family. 233 However, given the importance of
228. See William Buss, Constitutional Words About Words: Protected Speech
and "Fighting Words" Under the Australian and American Constitutions, 15
TRANSNAT'L L. & CONTEMP. PROBS. 489, 494 (2006); Carmi, supra note 217, at
965-66; Ambika Kumar, Note, Using Courts to Enforce the Free Speech
Provisionsof the InternationalCovenant on Civil and PoliticalRights, 7 CHI. J.
INT'LL. 351, 357 n.43 (2006).
229. Christoffer Badse, The Test of Necessity in a European Context: The
Case of Denmark, at 7, http://www.badse.dk/Freedom%20of%20Expression%20-
%20The%20Test%20of'io20Necessity.pdf (last visited Mar. 30, 2009). Section
266b is also translated in Soren Baatrup, Denmark, in COMM'N OF THE
EUROPEAN CMTYS., REPORT THE EUROPEAN GROUP OF EXPERTS ON COMBATING
SEXUAL ORIENTATION DISCRIMINATION, COMBATING SEXUAL DISCRIMINATION IN
EMPLOYMENT: LEGISLATION IN FIFTEEN EU MEMBER STATES 145, 148 n.14 (2004),
available at http://www.ec.europa.eu/employment-social/fundamental-rights
/pdf/aneval/sexorfullda.pdf.
230. Memorandum from Henning Fode, Director of Public Prosecutions,
Decision on Possible Criminal Proceedings in the Case of Jyllands-Posten's
Article "The Face of Muhammed" 8 (Mar. 15, 2006), available at
http://www.rigsadvokaten.dk/media/bilaglafgorelse-engelsk.pdf.
231. United Nations Committee on the Elimination of Racial Discrimination,
Consideration of Reports Submitted by States Parties Under Article 9 of the
Convention: Denmark, 36, U.N. Doc. CERD/C/280/Add.1 (May 3, 1995)
(quoting Straffelov [Penal Code] 266B (Den.)), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/b95ac4e38d06ddd58025654e005c7c9
b?Opendocument. This source contains both a discussion of 266B and three
convictions under it. Id. 47-66.
233. United Nations Committee on the Elimination of Racial Discrimination,

communicative self-determination to a democracy, which Robert

Post points out, statements that simply offend personal beliefs do
not fall under the Danish Penal Code's provisions. In this category,
depictions of Muhammad, which is prohibited by some sects of
Islam, is unlikely to cause serious fear for personal well-being nor is
it likely to constitute an extreme form of degradation. 24 Therefore,
Denmark's Director of Public Prosecutions determined not to
institute criminal proceedings against a Danish newspaper that
printed twelve cartoons critical of radical Islam. 2
The Finnish Constitution protects the right of free expression,
as do all the democracies reviewed in this Article. 236 This and other
basic rights are balanced against the nation's commitment to
democratic governance that "entails the right of the individual to
participate in and influence the development of society." 37 Finland
criminalizes the targeting of any racial, national, ethnic, religious,
or "comparable group" through threats, slanders, or insults.238
Actionable statements can be made "verbally, in writing, by
illustration, or by gestures. 2 9
The maximum sentence in Sweden for dissemination of
statements against a national or ethnic group is two years, as it is in
Finland.2 4 Specifically, the Swedish Penal Code prohibits the
expression of "contempt for a national, ethnic or other such group of
persons with allusion to race, colour, national or ethnic origin or
religious belief."24 1 The constitutional right to the freedom of
expression, which is explicitly called a fundamental right, can be
restricted under statutorily defined circumstances.24 2 In a 2005
decision, the Swedish Supreme Court recognized that the free
supra note 231, T 56.

234. For a more complete discussion of this point, see STEVEN J. HEYMAN,
FREE SPEECH AND HuMAN DIGNITY 181-82 (2008).
235. See Edwin Jacobs, Cartoon Case: Denmark Will Not Prosecute,
BRUSSELS J., Mar. 16, 2006, available at http://www.brusselsjournal.com
/node/915.
236. CONST. FIN. ch. 2 12 (1999), available at http://www.finlex.fi
/en/laki/kaannokset/1999/en19990731.pdf.
237. Id. 2.
238. PENAL CODE ch. 11 8 (Fin.), available at http://www.finlex.fi
/pdf/saadkaan/E8890039.PDF.
239. Laiva on taynna, http://laivaontaynna.blogspot.com/search/label/english
(Apr. 5, 2007, 19:02 EET).
240. See PENAL CODE ch. 11 8 (Fin.), available at http://www.finlex.fi
/pdf/saadkaan/E8890039.PDF; Brottsbalken [BrB] [Criminal Code] 16:8 (Swed.),
available at http://www.sweden.gov.se/sb/d/574/a/27777.
241. Brottsbalken [BrB] [Criminal Code] 16:8 (Swed.), available at
http://www.sweden.gov.se/sb/d/574a/27777.
242. Regeringsformen [RF] [Constitution] 1:1 (Swed.). A printable text of
the constitutional provision protecting freedom of expression can be found at
http://www.riksdagen.se/templates/RPage-6316.aspx (last visited Mar. 30,
2009).

exchange of ideas is "one of the foundations of democracy."

Nevertheless, in special circumstances, including incitement against
a protected group, restrictions on speech increase the breadth of
political, religious, labor, scientific, and cultural communication.2
The Court thereby acknowledged that hate speech stifles victims
from participating in democracy while it increases bigoted
individuals' right to self-determination.
The Norwegian government regards access to information to be
"a cornerstone of Norwegian democracy." 245 That commitment is no
barrier to hate speech legislation, however. Section 135a of the
Norwegian Penal Code prohibits inciting propaganda that relies on
racial, xenophobic, ethnocentric, and homophobic hatred directed
against specific groups or individuals. However, the bare expression
of racism or ethnocentrism is not actionable.246 That qualification is
similar to the standard set by the Supreme Court of the United
States in Virginia v. Black, where the plurality found that a cross
burning statute could only be constitutional if it included a scienter
element. 247 In 1996, eight of the eighty-six trials on discrimination
charges brought in the Netherlands were against persons for
allegedly inciting others to hatred, discrimination, or violence. 248
CONCLUSION
International norms and the penal codes of numerous countries
243. Prosecutor Gen. v. Green, Nytt Juridiskt Arkiv [NJA] [Supreme Court]
2005-11-29 p. 10 (Swed.), available at http://www.domstol.se/Domstolar
/hogstadomstolen/Avgoranden/2005/Dom-pa-engelska B_1050-05.pdf.
244. Id.
245. Kultur- og Kirkedepartementet, Ministry of Culture and Church
Affairs: Media in Norway (1996), available at http://www.regjeringen.no
/nb/dep/kkd/dok/veiledninger-brosjyrer/1996/Media-in-Norway.html?id=419207.
246. Straffelodn [Penal Code] 13:135a (Nor.). A translation of Section 135a
is available at http://www.legislationline.org/download/action/download
/id/1690/file/c428fe3723f10dcbcf983ed59145.htm/preview. For further
discussion of section 135a, see Gro Lindstad, Norway, in IGLHRC BOOK
NORWAY 134 (2003), available at http://www.iglhrc.orglbinary-
data/ATTACHMENT/file/000/000/53-1.pdf (discussing the 135a provision
against hate speech directed at gays and lesbians); Communication from the
Norwegian Government to the Committee on the Elimination of Racial
Discrimination in Communication (Feb. 21, 2006) (describing how the
Norwegian government has strengthened section 135a since 2004, providing the
law more effective provisions against racist and ethnocentric speech), available
at http://www.regjeringen.no/upload/kilde/jd/prm/2006/0014/ddd/pdfv/273990-
cerd_reply-norway.pdf;
COUNCIL OF EUROPE, EUROPEAN COMMISSION AGAINST
RACISM AND INTOLERANCE: THIRD REPORT ON NORWAY (Jan. 27, 2004) (detailing
the latest law efforts under section 135a), available at
http://www.unhcr.org/refworld/country,,COECRI,,NOR,4562d8b62,46efa2e52d,0
.html.
248. See U.S. DEP'T OF STATE, THE NETHERLANDS COUNTRY REPORT ON HuMAN
RIGHTS PRACTICES FOR 1997 (1998), available at http://www.state.gov
/www/globalhuman-rights/1997-hrp-report/netherla.html.

demonstrate the broad consensus that inciting others to hatred is

threatening and inconducive to dialogue. Democracies around the
world generally recognize that the value of preserving human rights
supersedes bigots' self-determined desire to spread destructive
messages. Countries that have examined the legitimacy of hate
speech regulations in a democracy, the very analysis that Robert
Post has advocated, have found that they can protect people's self-
determinative right of expression without adhering to free speech
absolutism. Free speech is essential to collective decision making;
however, when hate speech places reasonable people in fear for their
well-being or advocates discriminatory conduct it undermines the
very collective autonomy Post espouses.
Like the many countries surveyed in this Article, the United
States, through the Supreme Court's decision in Virginia v. Black,
has determined that public displays of intentionally intimidating
hate symbols, like burning crosses, undermine groups' ability to
safely participate in a pluralistic polity. What the Court has left
unresolved is whether other forms of hate speech, such as those that
are not intimidating but that incite an audience to commit
discrimination at work or in public places, can also withstand First
Amendment scrutiny.249 Such an extension of current American
jurisprudence would indicate a greater respect for human dignity
than for degrading expression.
249. See Gilreath, supra note 76, for a proposed substantive equality
approach to free speech that emphasizes the harm of hate propaganda.

Texas A&M University School of Law
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Faculty Scholarship
2009
Guarding the Guardians: Judicial Councils and

Judicial Independence
Nuno Garoupa
ngaroupa@ffms.pt
Tom Ginsburg
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Nuno Garoupa & Tom Ginsburg, Guarding the Guardians: Judicial Councils and Judicial Independence, 57 Am. J. Comp. L. 103 (2009).
Available at: http://scholarship.law.tamu.edu/facscholar/426
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NUNO GAROUPA AND TOM GINSBURG*
Guarding the Guardians: Judicial Councils and

Judicial Independence
This Article uses comparative evidence to inform the ongoing de-

bate about the selection and discipline of judges. In recent decades,
many countries around the world have createdjudicial councils, insti-
tutions designed to maintain an appropriatebalance between judicial
independence and accountability. Our Article has two aims. First,we
provide a theory of the formation of judicial councils and identify
some of the dimensions along which they differ. Second, we test the
extent to which different designs of judicial council affect judicial
quality. We find that there is little relationship between councils and
quality. We also offer a positive explanationfor why judicial councils
nevertheless remain attractive institutions.
I. INTRODUCTION
The selection of judges is a central factor in most theories of judi-

cial independence. 1 Judges who are dependent in some way upon the
* Nuno Garoupa is Professor of Law, University of Illinois and Research Profes-
sor of Law, IMDEA (Madrid); Tom Ginsburg is Professor at the University of Chicago
Law School. We thank Luciana Gross Cunha, Emilio Gerelli, James Gordley, F. An-
drew Hanssen, Richard McAdams, Maria Angela Oliveira, Limor Riza, Larry Solum,
Alexi Trochev, Stefan Van Hemmen, and seminar participants at the American Eco-
nomic Association meetings in Chicago (ISNIE Special Session on the Economics of
the Judiciary), the Taormina International Conference in Searching for New Methods
in Law and Economics, the Latin American and Caribbean Law and Economics Asso-
ciation meetings in Brasilia, the Royal Economic Society meetings in Coventry, and at
the workshops in UAB Barcelona, University of Illinois College of Law, the University
of Southern California Gould School of Law and the Hamburg Institute of Law and
Economics. We are grateful to Rebecca Crouse, Sofia Garcia, Christopher Minelli, and
Antonio Porto for research assistantship. The usual disclaimers apply.
1. There is a large body of literature on judicial independence and quality. See,
e.g., Richard Epstein, The Independence of Judges: The Uses and Limitations of Pub-
lic Choice, BYU L. REV., at 827 (1990); Paul Fenn & Eli Salzberger, Judicial
Independence: Some Evidence from the English Court of Appeal, 42 J.L. & ECON. 831
(1999); F. Andrew Hannsen, Is There a Politically Optimal Level of Judicial Indepen-
dence?, 94 Am. ECON. REV. 712 (2004); Irving Kaufman, The Essence of Judicial
Independence, 80 COLUM. L. REV. 671 (1980); Daniel Klerman & Paul Mahoney, The
Value of Judicial Independence: Evidence from 18th Century England, 7 AM. L &
ECON. REV. 1 (2005); William Landes & Richard Posner, The Independent Judiciaryin
an Interest-GroupPerspective, 18 J.L. & ECON. 875 (1975); J. Mark Ramseyer, The
Puzzling (In)dependence of Courts, 23 J. LEGAL STUD. 721 (1994); J. Mark Ramseyer &
Eric Rasmusen, Judicial Independence in Civil Law Regimes: Econometrics from Ja-
pan, 13 J.L. ECON. & ORG. 259 (1997); McNollgast, Conditions for Judicial
THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
person who appoints them cannot be relied upon to deliver neutral,

legitimate, high-quality decisions. While there is near-universal con-
sensus on this as a matter of theory, legal systems have devised a
wide range of selection mechanisms in practice, often trying to bal-
ance independence with accountability through institutional design.
The diversity of systems of judicial selection suggests that there is no
consensus on the best manner to guarantee independence. 2
At the same time, there is a trend toward insulating judicial se-
lection from partisan politics. In the United States, this is reflected in
the growing scholarly consensus in favor of "merit selection."3 In
other countries, it is reflected in the adoption of judicial councils, an
international "best practice" designed to help ensure judicial indepen-
dence and external accountability. We thus see the emergence of a
new orthodoxy-merit selection is good and other methods are retro-
Independence, 15 J. CONTEMP. LEGAL ISSUES 105 (2006); William H. Rehnquist, See in

a Glass Darkly: The Future of the FederalCourts, Wis. L. REV. 1 (1993). For a more
comparative perspective, see Josefina Calca de Temeltas, Commentary: Comparative
Constitutional Approaches to the Rule of Law and Judicial Independence, 40 ST.
Louis U. L. J. 1997 (1996).
2. See generally APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER (Kate Mal-
leson & Peter H. Russell eds., 2006).
3. Malia Reddick, Merit Selection: A Review of the Social Scientific Literature,
106 DICKERSON L. REV. 729 (2002) (providing summary of empirical evidence); Luke
Bierman, PreservingPower in PickingJudges: Merit Selection for the New York Court
of Appeals, 60 ALB. L. REV. 339 (1996) (advocating merit system for New York); Nor-
man L. Greene, Perspectives on Judicial Selection Reform: The Need to Develop a
Model Appointive Selection Plan for Judges in Light of Experience, 68 ALB. L. REV.
459 (2005) (merit system superior); Steven Zeidman, Keynote Address, JudicialPolit-
ics: Making the Case for Merit Selection, 68 ALB. L. REV. 713 (2005); Lawrence H.
Avrill, Jr., Observations on the Wyoming Experience with Merit Selection of Judges:A
Model for Arkansas, 17 U. ARK. LITTLE ROCK L.J. 281 (1995) (Arkansas); Sara S.
Greene, et al., On the Validity and Vitality of Arizona's Judicial Merit Selection Sys-
tem: Past, Present, and Future, 34 FORDHAM URB. L.J. 239 (2007) (Arizona); Victoria
Cecil, Merit Selection and Retention: The Great Compromise? Not Necessarily, 39
COURT REV. 20 (2002) (Florida); Jason J. Czarnezki, Essay, A Call for Change: Im-
proving Judicial Selection Methods, OR. L. REV. 459 (2005) (Wisconsin); Lenore L.
Prather, Judicial Selection: What is Right for Mississippi?, 72 Miss. C.L. REV. 459
(2002) (Mississippi); Jona Goldschmidt, Merit Selection: Current Status Procedures,
and Issues, 49 U. MIAMi L. REV. 1 (1994) (providing extensive history of merit selec-
tion and arguing for the merit plan); Joseph A. Colquitt, Rethinking Judicial
Nominating Commissions: Independence, Accountability, and Public Support, 34
FORDHAM URB. LJ. 78 (2007); Mark A. Behrens & Cary Silverman, The Case for
Adopting Appointive JudicialSelection Systems for State Court Judges, 1 CORNELL J.
L. & PUB. POL'Y 273 (2002) (arguing for appointment over election); Norman L.
Greene, A CriticalAppraisal of Appointive Selection for State Court Judges: The Judi-
cial Independence Through FairAppointments Act, 34 FORDHAM URB. L.J. 13 (2007)
(same); G. Alan Tarr, Designing an Appointive System: The Key Issues, 34 FORDHAM
URB. L.J. 291 (2007) (same); Jeffery D. Jackson, Beyond Quality: First Principles in
JudicialSelection and Their Application to a Commission-Based Selection System, 34
FORDHAM URB. L.J. 459 (2007); Steven P. Croley, The MajoritarianDifficulty: Elective
Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689 (1995) (judicial elections
undermine rule of law); Paul R. Brace & Melinda Gann Hall, The Interplay of Prefer-
ences, Case Facts, Context, and Rules in the Politics of Judicial Choice, 59 J. POL.
1206 (1997).
2009] JUDICIAL COUNCILS AND JUDICIAL INDEPENDENCE 105
grade. Because there are few common metrics to evaluate the

comparative independence or quality of judiciaries, the new scholarly
consensus is largely theoretical, built on anecdotal rather than sys-
4
tematic evidence.
This Article describes the global spread of judicial councils and
provides a theory of their formation and features. By our estimate,
over sixty percent of countries have some form of judicial council, up
from ten percent thirty years ago. 5 We also provide some evidence as
to whether different designs of judicial council affect judicial quality.
Although we find that there is little relationship between council
adoption and quality, the Article argues that the eternal struggle for
a balance between independence and accountability ensures that ju-
dicial councils will continue to be a locus of institutional reform. Yet
there are limits to the efficacy of institutional solutions to problems of
judicial independence. Although councils serve as an arena for con-
testation for various groups with an interest in judicial performance,
they do not by themselves guarantee the substantive outputs of inde-
pendence and quality.
The Article is organized as follows. First, we discuss the emer-
gence of judicial councils. We then provide a theory of the formation
of judicial councils and identify some of the dimensions along which
they differ. Next, we test the extent to which different designs of judi-
cial council affect judicial quality. We find that there is little
relationship between council design and quality. Our theory never-
theless offers a positive explanation for why judicial councils remain
attractive institutions. Finally, we conclude with a discussion of the
implications of the analysis.
II. THE TENSION BETWEEN ACCOUNTABILITY AND INDEPENDENCE
A long and established literature argues that the ideal of judicial

independence is a crucial quality of legal systems, and indeed inher-
ent in the notion of judging. 6 Naturally, the ideal is not always met,
for it remains the case that in every legal system judges are ap-
pointed and employed by the state. It would be unusual indeed if
judges did not have a role in implementing social policy, broadly con-
ceived. 7 In democracies, this implies the need for some accountability
4. But see Stephen J. Choi et al., Judicial Independence, Judicial Quality and
the CountermajoritarianDifficulty: An Empirical Test Using Data from State Su-
preme Courts (2007), availableat http://papers.ssrn.comL/sol3/papers.cfm?abstractid=
998536 (finding that judges in partisan systems are more productive in terms of num-
ber of opinions, but that appointed judges are cited more frequently).
5. Diffusion data on file with authors.
6. See the recent volume JuDciAL INDEPENDENCE AT THE CROSSROADS: AN INTER-
DISCIPLINARY APPROACH (Stephen B. Burbank & Barry Friedman eds., 2003).
7. MARTIN SHAPIRO, CouRTs: A COMPARATIVE AND POLITICAL ANALYSIS (1981).
of judges. While judicial independence is widely studied,8 accounta-

bility has been the subject of much less inquiry. It requires that the
judiciary as a whole maintain some level of responsiveness to society,
as well as a high level of professionalism and quality on the part of its
members. This section discusses judicial councils as devices to ensure
both independence and accountability.
A. Judicial Councils in Civil Law and Common Law Systems

Judicial councils are bodies that are designed to insulate the
functions of appointment, promotion, and discipline of judges from
the partisan political process while ensuring some level of accounta-
bility. Judicial councils lie somewhere in between the polar extremes
of letting judges manage their own affairs and the alternative of com-
plete political control of appointments, promotion, and discipline. The
first model of judicial self-management arguably errs too far on the
side of independence, while pure political control may make judges
too accountable in the sense that they will consider the preferences of
their political principals in the course of deciding specific cases. There
are a wide variety of models of councils, in which the composition and
competences reflect the concern about the judiciary in a specific con-
text, balancing between demands for accountability and
independence.
France established the first High Council of the Judiciary (Con-
seil Superieur de la Magistrature) in 1946. 9 It was in charge of
managing judicial personnel but only a minority of members were
8. See, e.g., Sanford Levinson, Identifying "Independence," 86 B.U. L. REV. 1297

(2006) (identifying formal and informal pressure on the judiciary); Stephen B. Bur-
bank, The Architecture of Judicial Independence, 72 S. CAL. L. REV. 315 (1999)
(explaining judicial independence in contemporary American history); Archibald Cox,
The Independence of Judiciary: History and Purposes, 21 U. DAYTON L. REV. 565
(1996) (discussing historical reasons for judicial independence); John Ferejohn &
Larry Kramer, Independent Judges, Dependent Judiciary:InstitutionalizingJudicial
Restraint,77 N.Y.U. L.REv. 962 (2002) (arguing that independence and accountability
aim at a well-functioning system of adjudication); John Ferejohn, JudicializingPolit-
ics, Politicizing the Law, 65 LAw & CONT. PROBS. 45 (2002); John Ferejohn,
Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S.
CAL. L. REV. 353 (1999) (discussing institutional protections for judges and the judici-
ary and explaining interest theories of judicial independence); Gordon Bermant &
Russell Wheeler, Federal Judges and the Judicial Branch: Their Independence and
Accountability, 46 MERCER L. REV. (1995) (identifying different levels of indepen-
dence, including decisional independence, personal independence, procedural
independence, administrative independence; and different levels of accountability,
namely internal vs. external accountability); Frank Kahn Zemans, The Accountable
Judge: Guardianof Judicial Independence, 72 S. CAL. L. REV. 625-56 (1999) (discuss-
ing institutional versus decisional independence); also Burbank & Friedman, supra
note 6.
9. A precursor for judicial councils can be seen in the use of formal nominations
committees composed of various governmental officials. See, e.g., Constitution of Alba-
nia, 1925 (judicial nominations from special committee of judges, prosecutors, and
Minister of Justice).
themselves magistrates elected directly by fellow judges.1 0 Italy's ju-

dicial council (Consiglio Superiore della Magistratura), created in
1958, was the first to fully insulate the entire judiciary from political
control, a model that has been followed in other judicial reforms." 1
Spain 12 and Portugal 13 have slightly different models introduced af-
ter the fall of the dictatorships in the mid 1970s, in which judges
constitute a significant proportion of the members. These councils
have final decision-making in all cases of promotion, tenure, and re-
moval. Judicial salaries are also technically within their authority
but usually tempered by the department in charge of the budget (typ-
ically the Ministry of Finance). The power of high-ranking
magistrates has been dramatically reduced in most of these countries
(as a consequence of junior-ranking judges being appointed to the ju-
dicial council) and strong unions or judicial associations have
emerged.14
The French and Italian cases were motivated by a concern about
excessive politicization and consequently granted extensive indepen-
dence to the judicial power. After some time, however, courts became
more extensively involved in politics and accountability issues came
10. In the Fifth Republic, the President of the Republic took over the appoint-
ments of all the members and reinstated most of the traditional powers of the
Minister of Justice and higher-ranking judges. The cohabitation period in the 1980s
eventually led to another reform (Loi Constitutionnelle of July 1993 and Loi Or-
ganique of Feb. 1994). The Council has two committees, one for judges and another
one for prosecutors. The Council has a total of sixteen members. Each committee has
one administrative judge chosen by the administrative judges (Conseil d'Ptat) and
three individuals chosen by the President, the Senate, and the National Assembly
each. For the judicial committee, it has also five judges elected by the fellow judges
and one prosecutor chosen by the fellow prosecutors; for the prosecutorial committee,
it has one judge elected by the fellow judges and five prosecutors for the prosecutorial
formation. The President and the Minister of Justice sit ex officio. See Cheryl Thomas,
Judicial Appointments in Continental Europe, Lord Chancellor's Department, Re-
search Series 6/97, 1997.
11. The Italian Council was made up of thirty-three members, twenty magis-
trates elected directly by the judges, ten lawyers or law professors nominated by the
Parliament, and the President, the Chief-Justice, and the Chief-Prosecutor all serving
ex officio. It has been reformed recently to include only twenty-four members, sixteen
ordinary magistrates and prosecutors and eight lawyers or law professors with fifteen
years experience in the legal profession, all of whom are appointed by the Parliament.
See Thomas, supra note 10.
12. The Spanish Council (Consejo General del Poder Judicial)has twenty mem-
bers, twelve judges and eight lawyers all appointed by the Parliament and the Chief-
Justice ex officio. For prosecutors, there is a council made up of twelve prosecutors
(Consejo Fiscal).
13. There are three councils in Portugal, one for judicial courts (Conselho Supe-
rior da Magistratura),one for administrative courts (ConselhoSuperior dos Tribunais
Administrativos e Fiscais),and one f~r prosecutors (Conselho Superior do Ministgrio
Pdblico).
14. A good summary can be found in Thierry-Serge Renoux, 2000, Les Conseils
Supdrieurs de la Magistrature en Europe, Documentation Fran~aise (Coll. Perspec-
tives sur la justice). About the unionization of the judiciary, see Willem de Haan et al.,
Radical French Judges: Syndicat de la Magistrature, 16 J.L. & Soc'v 477-82 (1989)
(explaining the role of the union of judges).
to the fore. For example, in France, reforms in the 1990s were clearly
driven by political events that have empowered the judiciary. Al-
though the Fifth Republic maintained the traditional subordination
of the French judiciary to the executive and the legislature, and the
rather docile judiciary exercised individual and collective judicial
self-restraint, conflicts began to develop in the late 1960s and
1970s. 15 The consolidation of judicial review by the Constitutional
Council in the mid-1970s had a major and enduring impact. The
sharp increase in litigation, both civil and administrative, the
criminalization of many activities, and the extension of the scope of
application of the European Convention of Human Rights, all served
to increase the influence of the French judiciary. At the same time,
several political scandals gave the judiciary an important influence
over politics. France, with its tradition of viewing the judiciary as a
faceless collectivity dispensing justice, was now faced with a new
kind of celebrity. 16 Though the judiciary as a whole is still quite self-
restrained, a number of individual judges gained notoriety because of
their role in investigating political scandals. This in turn has led to
the introduction of a debate about the lack of external accountability
17
of judges.
The pattern in Italy is similar. The Italian judicial system is no-
table for its extreme independence, in which the judicial council
controls virtually all aspects of judicial appointment and promotion
for the ordinary judiciary. 1 8 The balance of power on the council is
clearly in the hands of the judiciary, and since the internal hierarchy
of the judiciary has largely been undermined, all decisions on the sta-
tus of magistrates are taken by the council. Prominent scandal
investigations related to businessmen, politicians, and bureaucrats
marked the period from 1992 to 1997, raising questions about judicial
accountability. 1 9 Consequently, the composition of the council was al-
tered in 2002 to increase the influence of the Parliament.
15. See Michael. H. Davis, A Government of Judges: An HistoricalRe-View, 35

AM. J. COMP. L. 559 (1987) (explaining why the American government of judges is
disliked by the French legal scholars); John Bell, Principlesand Methods of Judicial
Selection in France,61 S. CAL. L. REV. 1757 (1988); ALEC STONE, THE BIRTH OF JUDI-
CIAL POLITICS IN FRANCE (1992); Vincent Wright, The Fifth Republic: From the Droit
d'Etat to the Etat de Droit?, 22 W. EUR. POL. 92 (1999), and Dories Marie Provine &
Antoine Garapon, The Selection of Judges in France:Searchingfor a New Legitimacy,
in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER 176 (Kate Malleson & Peter H.
Russell eds., 2006).
16. See Doris Marie Provine, Courts in the PoliticalProcess in France, in COURTS,
LAW AND POLITICS IN COMPARATIVE PERSPECTIVE, at 203-04 (Herbert Jacob et al., eds.,
1996).
17. VALPRY TURCEY, LE CONSEIL SUPERIEUR DE LA MAGISTRATURE FRANCAIS: BI-
LAN ET PERSPECTIVES (2005).
18. See Thomas, supra note 10.
19. Patrizia Pederzoli, The Reform of the Judiciary in ITALIAN POLITICS: QUO
VADIS 153-71 (Carlo Guarnieri & James Newell eds., 2004); David Nelken, The
Judges and Political Corruption in Italy, in THE CORRUPTION OF POLITICS AND THE
The French-Italian model has been exported to Latin America

and other developing countries. 20 Indeed, the World Bank and other
multilateral donor agencies have made judicial councils part of the
standard package of institutions associated with judicial reform and
rule of law programming. 2 1 Efforts to produce model "best practices"
have ensured much replication and refinement of the judicial council
model. For example, the Association of European Magistrates for De-
mocracy and Freedom (MEDEL) produced a Draft Additional
Protocol to the European Convention on Human Rights, called the
Elements of European Statute on the Judiciary (known as the "Pa-
lermo Declaration"). This model statute states that there shall be a
supreme council of magistracy, at least half of whom are judges and
also including appointees of the parliament. 2 2 The model statute also
declares that the supreme council will produce a budget for the
courts, manage the administration, and control recruitment, assign-
ment 23 and discipline of judges, 2 4 thus guaranteeing judicial
independence. The Council of Europe made a similar recommenda-
POLITICS OF CORRUPTION 95-112 (Michael Levi & David Nelken eds., 1996); Carlo
Guarnieri, Judicial Independence in Latin Countries in Western Europ, in JUDICIAL
INDEPENDENCE IN THE AGE OF DEMOCRACY, CRITICAL PERSPECTIVES AROUND THE
WORLD (Peter Russell & David M. O'Brien eds., 2001).
20. See, e.g., Rebecca Bill Chavez, The Appointment and Removal Process for
Judges in Argentina: The Role of Judicial Councils and Impeachment Juries in Pro-
moting JudicialIndependence, 49 LATIN AMERICAN POL. & Soc. 33 (2005) (Argentina).
Some refer to a distinction between a "Northern European Model" more focused on
management concerns and a "Southern European Model" that is constitutionalized
and focusing on structural independence. Wim Voermans & Pim Albers, Councils for
the Judiciary in EU Countries,European Council for the Efficiency of Justice, CEPEJ
(2003). We reject this distinction as unhelpful, but rather develop an index of powers
and competences discussed infra, section V.
21. See Linn Hammergren, Do Judicial Councils FurtherJudicial Reform? Les-
sons from Latin America (Working-Paper Series Democracy and Rule of Law Project
28, 2002). See also Pedro C. Magalhaes, The Politics of Judicial Reform in Eastern
Europe, 32 COMP. POL. 43-62 (1999) (discussing the judicial institutional design in
Bulgaria, Hungary, and Poland and how it relates to the bargaining process between
the different political actors); ); Pilar Domingo, JudicialIndependence: The Politics of
the Supreme Court of Mexico, 32 J. LAT. AMER. STUD. 705 (2000) (arguing that specific
constitutional reforms and the politics of co-optation subordinated the judiciary to the
dominant party until 1994); Peter H. Solomon, Putin's Judicial Reform: Making
Judges Accountable as well as Independent, 11 E. EuR. CONST. REV. 117-23 (2002)
(discussing the reforms to the Judicial Qualification Commission); Lauren Castaldi,
Judicial Independence Threatened in Venezuela: The Removal of Venezuelan Judges
and the Complications of Rule of Law Reform, 37 GEORGETOWN J. INT'L L. 477 (2006)
(discussing the current situation in Venezuela).
22. Art. 3.2.
23. Art. 3.1.
24. Subject to review by the Supreme Court. Art. 3.4.
tion in a document published2 in 1994.25 Other international

organizations have followed suit. 6
The motivating concern for adoption of councils in the French-
Italian tradition was ensuring independence of the judiciary after pe-
riods of undemocratic rule. To entrench judicial independence, most
of these countries enshrined the judicial council in their constitution.
Independence, however, is a complex and multifaceted phenomenon.
Even though judges may be independent from political control, they
may become dependent on other forces, such as senior judges in a
judicial hierarchy-with just as much potential to distort individual
decision-making as more conventional political influence. 2 7 In civil
law countries, in particular, a large proportion of judges are recruited
directly from law school using some form of public examination, with
no or limited requirements of previous professional experience. 28
This model emphasizes socialization within the ranks of the judicial
profession and creates the potential for institutional pressures on
judges to decide individual cases in ways that are at odds with their
own conscience or reading of the law.
Perhaps because of concerns over this structural problem, exter-
nal accountability has emerged as a second goal of councils. This is
exemplified by the judicial councils in some civil law countries, such
as Germany, Austria, and the Netherlands, that enjoy fewer compe-
tences than do those in the French-Italian model. These councils are
limited to playing a role in selection (rather than promotion or disci-
pline) of judges, or are heavily influenced by regional and federal
governments. The political impact of these councils on the judiciary
has been less clear than in the four European countries utilizing the
29
French-Italian model.
Consider the Dutch case. Important reforms were recently intro-
duced to ensure more transparency and accountability but were not
due to high profile political scandals. The Dutch judiciary was histori-
cally very restrained, with a tradition of deference and a strong
concept of parliamentary sovereignty. The 1956 constitutional re-
form, designed to accommodate the nascent European legal order,
paved the way for more judicial activism and judges gradually be-
25. Recommendation No.R (94) 12 of the Committee of Ministers to Member

States on the Independence, Efficiency and Role of Judges (1994) (Council of Europe
Recommendation), art. I.2.c
26. Violane Autheman & Sandra Elena, Global Best Practices-JudicialCouncils:
Lessons Learned from Europe and Latin America, IFES, 2004 (arguing that judicial
councils should be composed of a majority ofjudges elected by their peers and should
be tasked with selection, promotion, discipline, and training).
27. See Owen Fiss, The Right Degree of Independence, in TRANSITIONS TO DEMOC-
RACY IN LATIN AMERICA: THE ROLE OF THE JUDICIARY 55-72 (Irwin Stotzky ed., 1993)
(focusing on independence within the judicial hierarchy).
28. Nicholas L. Georgakopoulos, Discretion in the Career and Recognition Judici-
ary, 7 CHI L. SCH.ROUNDTABLE 205 (2000).
29. See Thomas, supra note 10.
came more active in enforcing the European Convention of Human
Rights. 30 In 2002, a Council for the Judiciary (Raad voor de Recht-
spraak) was created to take primary responsibility for the
organization and financing of the Dutch Judiciary. 3 1 The primary im-
petus for reforms has not been the judicialization of politics but
rather a perceived need for more accountability and better allocation
of resources.
The councils in civil law jurisdictions vary in their relationship
with the Supreme Court. In some countries, such as Costa Rica and
Austria, the judicial council is a subordinate organ of the Supreme
Court tasked with judicial management. 3 2 In other countries, judicial
councils are independent bodies with constitutional status. Further,
in some countries councils govern the entire judiciary, while in others
they only govern lower courts. 33
The case of Brazil is of special interest in this context. The Bra-
zilian judiciary has traditionally been considerably decentralized,
very much influenced by the United States model. 34 Although there
are serious administrative and financial advantages of decentraliza-
tion, it has also created serious drawbacks in terms of effective
disciplinary action and accountability. Brazil's first judicial council
was created in 1977. The primary function of the council was discipli-
nary and it had no budgetary or administrative functions. Though
formally designed to provide the appearance of independence, the
1977 version of the judicial council did little to constrain potential
military interference with the courts. Indeed, judicial independence
was in one sense greatest between 1988 and 2004, when judges en-
joyed a vastly expanded domain of governance but had little
oversight. The association between the council and the dictatorship
was the likely reason for its abolition in 1988 with the return to de-
mocracy. Nevertheless, in 2004, Brazil passed a constitutional
amendment to introduce a new judicial council with a very different
structure from its predecessor. 35 Only with the recent reforms is
30. See THIJMAN KOOPMANS, COURTS AND POLITICAL INSTITUTIONS, 76-84 (2003)
(describing the growth of power of the Dutch judiciary).
31. The creation of the Council for the Judiciary followed the Leemhuis Commis-
sion's advice to the Minister of Justice by the report "Updating the Administration of
Justice", in 1998.
32. The 1977 Brazilian council (Conselho Nacional da Magistratura)was another
good example. However, the 2004 council (Conselho Nacional de Justiqa) has nine
judges from different courts, including the Chief-Justice ex officio, two prosecutors,
two lawyers (representatives of the bar association) and two laymen appointed by the
Senate and the House respectively.
33. Voermans & Albers, supra note 20, provide the examples of Guatemala and
Argentina.
34. See the discussion by Maria Angela Oliveira, Reforming the Brazilian Su-
preme Federal Court:A ComparativeApproach, 5 WASH. U. GLOBAL STUDIES L. REV.
99 (2006).
35. The new model includes nine judges, two prosecutors, two lawyers, and two
laymen appointed by the legislature.
there a promise of a strong but politically accountable judiciary. It

remains, of course, to be seen whether this materializes.
Recruitment of the judiciary in common law countries has tradi-
tionally drawn from more senior lawyers who have a wider range of
previous experience and socialization than do judges in the civil law
jurisdictions. 3 6 Therefore, external accountability has been a major
motivating factor in shaping the design of judicial appointment sys-
tems. Compared to the civil law judiciaries, common law judges have
relatively few opportunities for advancement, and hence there is less
capacity for political authorities to use the promise of higher office to
37
influence judicial decision-making. Accordingly, appointments
processes have received serious attention since judges are fairly im-
mune from pressures once appointed. In the United Kingdom, the
Constitutional Reform Act 2005 has created the Judicial Appoint-
ments Commission responsible for appointments based solely on
merit.38 There is nevertheless a good deal of discussion as to how to
balance the merit principle with other functionalist goals such as af-
firmative action and the Commission is anticipated to be able to 39
produce a judiciary that is both higher quality and more diverse.
36. See Georgakopoulos, supra note 28. Debate in common law countries tends to
focus on the merits of the appointees and diversity concerns. See, e.g., Kate Malleson,
Selecting Judges in the Era of Devolution and Human Rights, in Building the UK's
New Supreme Court, in NATIONAL AND COMPARATIVE PERSPECTIVES (Andrew Le Sueur
ed., 2004).
37. CfJ. MARK RAMSEYER & ERIC RASMUSEN, MEASURING JUDICIAL INDEPENDENCE
(2004) (documenting political manipulation of judicial career structures in Japan).
However, see David M. O'Brien & Yasou Ohkoshi, Shifting Judicial Independence
from Within: The Japanese Judiciary,in JUDICIAL INDEPENDENCE IN THE AGE OF DE-
MOCRACY, CRITICAL PERSPECTIVES AROUND THE WORLD (Peter Russell & David M.
O'Brien eds., 2001) (arguing that Ramseyer and Rasmusen have misunderstood the
manipulation of the judiciary in Japan as political by the LDP when it is merely bu-
reaucratic by the faceless General Secretariat of the Supreme Court).
38. The composition of the JAC is fifteen, seven are judges and magistrates, two
lawyers (one barrister and one solicitor), and six are laymen (including the chairman).
It started selecting judges in Apr. 2006. KATE MALLESON, THE LEGAL SYSTEM ch. 17.40
(2005), argues that the JAC is effectively dominated by the judiciary. The fact that the
council is chaired by a non-lawyer does not seem to counter a strong judicial member-
ship. The traditional role of the Lord Chancellor in judicial appointments has been
the object of study by Anthony Bradney, THE JUDICIAL ACTIVITY OF THE LORD CHAN-
CELLOR 1946-1987: A PELLET, 16 J.L. & Soc'y 360 (1989).
39. For a discussion on the extent to which merit selection is consistent with af-
firmative action in the judiciary, see Kate Malleson, Rethinking the Merit Principlein
Judicial Selection, 33 J.L. & Soc'Y 126-40 (2006); see also Kathleen A. Bratton &
Rorie L. Spill, Existing Diversity and Judicial Selection: The Role of Appointment
Method in Establishing Gender Diversity in State Supreme Courts, 83 SOCIAL SCIENCE
QUARTERLY 504 (2002) (presenting empirical evidence that appointed systems of judi-
cial selection produce more diversity than election systems). The Canadian experience
of provincial and federal advisory committees has been appraised as a good model to
promote women and minorities within the judiciary. There are wide different models
in Canada, but usually judges are not a majority in the council. The federal committee
has seven members, three laymen, three lawyers, and one judge. See Kate Malleson,
The Use of Judicial Appointment Commissions: A Review of the US and Canadian
Models, Lord Chancellor's Department, Research Series 6/97, 1997.
20091 JUDICIAL COUNCILS AND JUDICIAL INDEPENDENCE 113
The advantages of a Judicial Appointment Commission have also

been at the heart of the debate in New Zealand and in Australia,
where judicial appointments are still in the competence of the Attor-
ney-General. Currently, judicial appointment protocols have been
developed to enhance independence and external accountability (by
including mandatory consultation with several office holders). 40
Within the common law world, the case of Singapore is also an
interesting one that illustrates the dangers of assuming that judicial
involvement in appointments ensures complete independence. There
is a Legal Service Commission in Singapore, but its role is somewhat
limited. 4 1 The president appoints judges of the Supreme Court on the
recommendation of the prime minister after consultation with the
Chief Justice. The Legal Service Commission supervises and assigns
the placement of the subordinate court judges and magistrates who
have the status of civil servants; however, the president appoints
subordinate court judges on the recommendation of the Chief Jus-
tice. 42 The Chief Justice in Singapore is probably the most well-paid
judge in the world, with a salary of well over one million U.S. dollars,
and the judiciary is widely praised for its quality and independence.
Nevertheless, it is also known for its docility in cases of great impor-
tance to the ruling party. One might characterize this situation as
being one in which the bribes are legalized in the form of salaries,
and in which the person of the Chief Justice operates to ensure that
lower judges do not stray from the formula of independence in com-
mercial cases but docility in political ones. 4 3
B. The American Experience

In many American states, concern over traditional methods of ju-
dicial selection (either appointment by politicians or direct election by
the public) led to the adoption of "Merit Commissions" to remove par-
tisan politics from judicial appointments and base selection on merit.
40. Empirical analysis is provided by Mita Bhattacharya & Russell Smyth, 30

THE DETERMINANTS OF JUDICIAL PRESTIGE AND INFLUENCE: SOME EMPIRICAL EVIDENCE
FROM THE HIGH COURT OF AUSTRALIA, J. LEGAL STUD. 223-52 (2001) and Pushkar Mai-
tra & Russell Smyth, Judicial Independence,JudicialPromotionand the Enforcement
of Legislative Wealth Transfers - An EmpiricalStudy of the New Zealand High Court,
EUR. J.L. & ECON., at 17 (2004). See also discussion by John M Williams, Judicial
Independence in Australia, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY,
CRITICAL PERSPECTIVES AROUND THE WORLD ( Peter Russell & David M. O'Brien eds.,
2001) (showing that while the structural guarantees are quite robust and few at-
tempts have made to remove judges, there are serious proposals for reform).
41. See Kim Teck Kim Seah, The Origins and Present ConstitutionalPosition of
Singapore's Legal Service Commission, SING. ACAD. L.J., at 2 (1990).
42. The judicial branch of the Legal Service Commission is headed by the Regis-
trar of the Supreme Court but the ultimate responsibility for managing lies with the
Chief Justice.
43. Gordon Silverstein, Singapore: The Exception that Proves Rules Matter, in
RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN REGIMES (Tom Ginsburg &
Tamir Moustafa eds., 2008).
Merit Commissions can be seen as analogous to judicial councils,

though their scope of activity is more limited. Because in common law
systems, the judiciary is not a "career judiciary" in the civil law sense,
there is less interest in having independent commissions handle dis-
cipline, promotions, and reassignments, and greater emphasis on
initial appointments. The basic institutional design, however-
namely setting up non-partisan mixed bodies to screen and select ju-
dicial candidates-is similar to the judicial commission.
Sometimes called the "Missouri Plan" (although some assert that
it was first adopted in California) or "Merit Plan," this system fea-
tures a non-partisan judicial selection commission composed of
judges, lawyers, and political appointees. 4 4 The inspiration for this
institution was a famous 1906 speech by Roscoe Pound and can be
seen as consistent with early twentieth century view in the value of
technocracy and administrative insulation from politics. 4 5 The Merit
Commission is responsible for nominating judges, exclusively in some
states and in other states sending a set of candidates from which the
Governor chooses appointees. Merit Plan judges are typically subject
to uncontested retention elections but judges rarely lose these elec-
tions. 46 As of 1990, twenty-three states used the Merit Plan for initial
appointment. Most states adopted these institutions in the 1960s and
47
1970s.
A general assumption in the literature is that Merit Plan sys-
tems will expand independence. 48 For example, Hanssen tests the
effect of partisan division on appointment and retention systems, as-
suming that Merit Plan correlates with independence. 4 9 He finds
that, broadly speaking, states using merit plans tend to correlate
with higher levels of political competition (and hence presumed de-
mand for judicial independence) than those using partisan
elections.5 0 Hanssen also finds that states switch to merit plans when
they have increased party competition and policy differences between
44. In Missouri, the Commission has seven members: the Chief Justice, three
lawyers elected by the bar from different appellate districts, and three laypersons
appointed by the Governor. For an analysis, see Hanssen, supra note 1.
45. Roscoe Pound, The Causes of PopularDissatisfactionWith the Administration
of Justice, 20 J. Am.JUD. Soc'y 178 (1937).
46. Peter Webster, Selection and Retention of Judges: Is There one Best Method?,
23 FLA. ST. U. L. REV. 1 (1995); Reddick, supra note 3, at 10 (noting only thirty-three
judges lost retention elections in the entire United States between 1942 and 1978).
47. F. Andrew Hannsen, Learning About Judicial Independence: Institutional
Change in State Courts, 33 J. LEGAL STUD. 431-62 (2004).
48. See, e.g., Reddick, supra note 3 (reviewing literature).
49. Hanssen, supra note 1, at 721.
50. For at least one indicator, both these methods have less political competition
on some indicators than the residual category of "other" appointment methods (such
as legislative or gubernatorial appointment. Id. at 720 ("In 95 percent of partisan
election states the same party controlled both houses of the legislature, versus in 87
percent of merit plan states and 81 percent of other states").
parties. This is consistent with literature that emphasizes the 51

role of
partisan competition in incentivizing judicial independence.
Nevertheless, we know of no study that has demonstrated an ac-
tual improvement in judicial independence or quality after adoption
of the Merit Plan, and the actual impact on quality is debatable. 52 In
a comprehensive review of the social scientific literature, Reddick
concludes that there is little support for "proponents' claims that
merit selection insulates judicial selection from political forces,
makes judges accountable to the public, and identifies judges who are
53
substantially different from judges chosen through other systems."
However, as Hanssen put it "(t)here is today a strong consensus that,
of all the procedures, the merit plan best insulates the state judiciary
54
from partisan political pressure."
The nominating commission under the Merit Plan is essentially
a judicial council by another name, with its function limited to selec-
tion of judges. As a common law country with judges that tend to be
appointed relatively late in life, the United States has little need for
independent bodies to engage in promotion of judges. Thus the com-
missions play a relatively limited role, but focus on the crucial locus
of partisan pressure. This illustrates the importance of understand-
ing institutional variation in conditioning demand for the judicial
council model.
C. The British Experience

The British case is of particular significance given its recent reforms
to a venerable system. In 2003, Prime Minister Blair's Government
announced its intention to modify the system for judicial appoint-
ments in England and Wales. The reform was justified as advancing
the twin goals of improving judicial independence and enhancing ac-
countability and public confidence. Although the independence of the
judiciary was confirmed in the Act of Settlement 1701, and since then
strong norms of judicial immunity have made it quite difficult to re-
move judges, appointments remained in the hands of the Lord
Chancellor, a senior government official. 5 5 The traditional view was
51. J. Mark Ramseyer, The Puzzling (In)Dependence of Courts, 23 J. LEG. STUD.

721 (1994); see also Tom Ginsburg, JUDICIAL REVIEW IN NEW DEMOCRACIES (2003);
Mathew Stephenson, When the Devil Turns... The PoliticalFoundationsof Indepen-
dent JudicialReview 32 J. LEG. STUD. 59 (2003); Lee Epstein et al., Selecting Selection
Systems, in JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY AP-
PROACH 191-226 (Stephen B. Burbank & Barry Friedman, eds., 2002).
52. Webster, supra note 46; Henry Glick, The Promise and Performance of the
Missouri Plan: JudicialSelection in the Fifty States, 32 U. MIAMI L. REV. 519 (1978).
See further discussion in Choi et al., supra note 4.
53. Reddick, supra note 3, at 15 of manuscript.
54. Hanssen, supra note 47, at 452.
55. For example, Stevens mentions several important episodes of political inter-
ference with the judiciary (including the right of the Crown not to reappoint judges on
the change of a monarch) but notes the declining role of the judiciary until the 1960s.
that the Lord Chancellor was the judiciary's representative in the

government and the government's representative to the judiciary, 56
hence a unique office well placed to represent the view of each side.
The English judiciary was never perceived to be a separate branch of
government in the American sense. 5 7 Furthermore, a system depen-
dent on the Lord Chancellor created a unified and hierarchical
judiciary. This structure did not promote diversity of opinions since
someone who did not conform to the views of the establishment was
not likely to be chosen by the Lord Chancellor for a judicial post.
The increasing profile of the English judiciary in recent years has
led to pressures for more judicial accountability. The Pinochet case in
1999 raised serious questions about having the most senior judiciary
sitting at the House of Lords. 58 There have been conflicts over sen-
tencing in the aftermath of the Human Rights Act 1998. Finally, the
case of McGonnell v. UK (2000) in the European Court of Human
Rights concerning the office of bailiff of the island of Guernsey had an
important impact. 59 In that case, the Court decided that a single offi-
cial who serves as both a judge and in an administrative role violates
Article 6 of the European Convention of Human Rights (although in
practice, in England and Wales, the Lord Chancellor has tradition-
ally avoided sitting on cases where there might be a conflict of
interest). Another source of pressure for more accountability has been
the growth of judicial review and 60the perception that judicial interfer-
ence has increased significantly.
One important concern is the lack of minorities and women in
the bench, thus providing a sense of gender and racial bias in the
appointments mechanism. Some have expressed concern that a small
He argues that the development of high formalism that protected the English judici-
ary from possible political interference made the judiciary increasingly irrelevant. See
ROBERT STEVENS, THE ENGLISH JUDGES: THEIR ROLE IN THE CHANGING CONSTITUTION
(2005), chs. 1 and 2. See also the recent volume BUILDING
THE UK's SUPREME COURT:
NATIONAL AND COMPARATIVE PERSPECTIVES (Andrew Le Seur ed., 2004).
56. See J. Steyn, The Case for a Supreme Court, 118 L. Q. R. 382 (contesting this
view and emphasizing that in practice the Lord Chancellor delegates to the Law
Lords judicial business).
57. See J.A.G. GRIFFITH, THE POLITICS OF THE JUDICIARY (5th ed. 1999), at chs. 8
and 9, where he argues that the myth of neutrality has undermined the building-up of
a strong judiciary. The author defends a political role of the judiciary in areas such as
law and order or social issues. See also Stevens, supra note 55, at chs. 6 and 7, and
ROBERT J. MARTINEAU, APPELLATE JUSTICE IN ENGLAND AND THE UNITED STATES: A
COMPARATIVE APPROACH (1990).
58. The contradictory decisions taken by different panels of three Law Lords were
not easily understood by the public. For a detailed account, see Stevens, supra note
55, at ch. 8.
59. McGonnell v. UK (2000) 30 EHRR 289.
60. See, among others, Robert Stevens, A Loss of Innocence? Judicial Indepen-
dence and the Separationof Powers, 19 OXFORD J. LEG. STUD. 365 (1999) and Matthew
Flinders, Mechanisms of JudicialAccountability in British Central Government, 54
PARLIAMENTARY AFFAIRS 54 (2001).
61
clique from Oxford and Cambridge dominates the appointments.
Furthermore, there have been indications of personal and corporate
bias in judicial profiles. 6 2 The demands for more diversity in the judi-
ciary called for a new method of judicial selection.
In 2003, Prime Minister Blair's Government announced its in-
tention to change the system for making appointments to the
judiciary in England and Wales. 6 3 The Constitutional Reform Act
2005 introduced several substantive changes in England and Wales,
including a statutory duty on government members not to influence
judicial decisions. The most far-reaching reforms were the abolish-
ment of the Lord Chancellor with the transfer of his judicial functions
(as the most senior judge in England and Wales) to the President of
the Courts of England and Wales (formerly known as Lord Chief Jus-
tice of England and Wales), 64 and the creation of a new Supreme
Court, with twelve judges independent of and removed from the 65
House of Lords with their own independent appointment system.
And crucially, a Judicial Appointments Commission was created, re-
sponsible for recommending candidates for judicial appointments on
a more transparent basis and based solely on merit.
D. Balancing Independence and Accountability

This brief survey illustrates that it is clearly impossible to elimi-
nate political pressure on the judiciary. While adequate institutions
might enhance judicial independence and minimize the problems of a
politicized judiciary, increasing the powers and independence enjoyed
by judges risks creating the opposite problem of over-judicializing
public policy. 66 It is our view that the periodic reforms of judicial ap-
pointments and management that we observe within and across
61. For an empirical analysis, see Jordi Blanes & Clare Leaver, An Economic
Analysis of Judicial Diversity PartI: Judicial Promotions, Oxford University mimeo-
graph (2007). See also Griffith, supra note 57, at 18-21 and Herbert M. Kritzer,
Courts, Justice and Politics in England, in COURTS, LAW AND POLITICS IN COMPARA-
TIVE PERSPECTIVE 91, at 92 (Herbert Jacob et al. eds., 1996).
62. See GRIFFITH, supra note 57, at chs. 3 to 6.
63. In the case of Scotland, judicial appointments were under review since Sept.
1999 and an independent Judicial Appointments Board was established in June 2002.
64. The President of the Courts of England and Wales sits in the Court of Appeal,
the High Court and the Crown Court, among others, is responsible for expressing the
views of the judiciary and for welfare, training, and guidance of the English judiciary.
He is not the President of the Supreme Court.
65. The new Supreme Court is to be launched in 2008 with the current twelve
Law Lords (the Lords of Appeal in Ordinary). There will be a Supreme Court ad hoc
selection committee presided by the President of the Supreme Court for future ap-
pointments. The remaining Lords of Appeal who are members of the House of Lords
and eligible to hear and decide judicial business under the Appellate Jurisdiction Act
1876 will not be moved to the Supreme Court (in Jan. 2007, there were thirteen in-
cluding three former Lord Chancellors).
66. Stephen Burbank, JudicialIndependence, JudicialAccountability and Inter-
branch Relations(U. Pa. L. Sch., Working Paper No. 102, 2006), available at http://lsr.
nellco.org/upenn/wps/papers/102 (arguing that judicial independence in the United
countries reflect a dialectic tension between the need to de-politicize

the judiciary and the trend toward judicializing politics. Indepen-
dence is needed to provide the benefits of judicial decision-making;
once given independence, judges are useful for resolving a wider
range of more important disputes; but as more and more tasks are
given to the judiciary, there is pressure for greater accountability be-
cause the judiciary takes over more functions from democratic
processes.
Figure 1 presents a stylized summary of the recurrent calibra-
tion between independence and external accountability, synthesizing
the different experiences discussed above. Begin in the upper right
corner, a judiciary that has little independence or influence. When
judges carry little weight over public policy and politics, concerns
over independence tend to dominate and reformers may push for a
move from a politically dependent weak judiciary to a strong self-reg-
ulated judiciary (e.g., the French-Italian experience in the 1950s, or
Spain and Portugal in the 1970s). This shift gives rise to a judiciary
that has some control over its own affairs. Frequently, though not
inevitably, judges use this independence to increase their influence
over public policy (perhaps as a result of exogenous events). This is
represented by a shift to the lower left corner of Figure 1. However,
once politics is judicialized in a significant way, pressures arise for
greater political accountability. The judiciary remains strong but is
more subject to oversight and control. As accountability becomes di-
rected only to a small group of principals and assaults on judicial
independence are too successful, we may in some circumstances ob-
serve a move from a politically accountable strong judiciary back to
politically dependent weak judiciary, as in a rising authoritarian re-
gime. This dynamic framework provides a tool for understanding the
various institutional adjustments observed in different countries.
Note that we are not asserting that movement across the various
zones of the figure is inevitable. Institutional configurations can be
stable for long periods of time, and there is no necessary condition
that judiciaries shift their location in the figure. What we believe the
figure does capture, however, is the potential for cycling among dif-
ferent models of judicial governance and the nature of the pressures
that judiciaries will face in particular configurations. We return to
these dynamics later in this Article.
States is at a tipping point because of a characterization of judicial politics as ordi-

nary politics).
2009] JUDICIAL COUNCILS AND JUDICIAL INDEPENDENCE
FIGURE 1: CONTROLLING THE JUDICIARY
IPLITIIZED~~~
MIN_
POLITICALLY
SELF-REGULATED [DEPENDENT
JUDICIARY WEAK
JUDICIARY
JUDICIAL
REFORMS FOR
CONFLICTS INDEPENDENCE ASSAULTSON
JUDICIARY AN D INDEPENDENCE
JUDICIALIZED GOVERNMENT WITH FOCUSED

PRESSURE FOR JUDICIAL ACCOUNTABILITY
POLITICS JUDICIAL
REFORMS.
REFORMS FOR
ACCOUNTABILITY
POLITICALLY I ACUTBLT POLITICALLY
INDEPENDENT ACCOUNTABLE
STRONG JUDICIARY STRONG
I F JUDICIARY
III. WHAT DO COUNCILS Do?

A. Competences
Academic work on judicial councils has been so far quite limited.

There are very few empirical studies 6 7 and there has been no eco-
nomic or statistical analysis to date that we know of. We have
observed that judicial councils operate in very different legal environ-
ments and, therefore, we need to understand the particularities
before we can compare the role and the powers of judicial councils
across countries.
Broadly speaking, judicial councils have three important
competences:
(i) Housekeeping functions (managing budget, material re-
sources, operations);
(ii) Appointment of judges; and
(iii) Performance evaluation (promotion, discipline, removal and
retention of judges, and judicial salaries).
For all of these functions, the key factor is effective calibration be-
tween judicial independence and external accountability. This
calibration will be achieved, for example, by the composition or mem-
bership of the council, by the appointment mechanism, or by sharing
certain functions with other branches of the government or other bod-
ies (even the public in the case of elected judges). We do not assert
that there is a universally optimal balance between independence
67. But see Hammergren, supra note 21.

and accountability, but understand that there is a limit to how far

one can move in either direction within democracies. 68 Moving too far
in either direction may trigger pressures for a shift as idealized in
Figure 1.
Whereas the first competence, housekeeping, is purely manage-
rial, the second and third competences are related to career
incentives and more directly contribute to judicial quality. House-
keeping functions deal with practical questions concerning the
organization and the running of the judiciary. 69 These functions can,
of course, potentially affect judicial independence-for example, if
material incentives are used to reward certain types of judges. Obvi-
ously managerial competences are also important for the efficiency of
courts and, in that respect, shape the quality of the legal system.
Nevertheless, the other two competences (appointment and perform-
ance evaluation) are more directly related to judicial career
incentives. If institutions matter for judicial quality, they matter be-
cause of their impact on judicial incentives.
B. Composition
Councils also vary in composition. The council is composed of
three possible types of members, (i) judges, (ii) members of other gov-
ernment bodies or their appointees, and (iii) lawyers. Judges on the
Council are typically appointed by the Supreme Court or by other
courts, while lawyers are appointed by the law society/bar associa-
tion. Members of government bodies are typically appointed by their
organizations.
A general assumption in the literature is that a judicial majority
on the council will ensure independence. However, even when the
judges are not a numerical majority in the council, they might have a
dominant or preponderant role for three reasons. First, most mem-
bers of a judicial council must rely on information provided by the
judiciary itself. Second, a judicial council does not exert direct control
over the judiciary (which would hurt the independence of judiciary)
but exercises a configuration of powers that mix authority and ac-
countability. This configuration is usually complex and full of
uncertainties that usually call for expertise by judges. Third, judges
may have particularly strong incentives to represent judicial inter-
ests on the council: after their service on the council, judges will
return to their professional careers inside the judiciary whereas the
non-judges will go back to their careers outside of the judiciary,
68. Hanssen, supra note 1.

69. We believe the primary rationale to be considered in assigning the task to a
council is economies of scale and specialization vis-a-vis alternative managers, such
as the Ministry of Justice (arguably better able to do things like purchasing supplies
etc.) or the Supreme Court (a body that typically has little time or expertise for
management).
which may or may not have any relationship with judicial manage-
ment issues.
C. The Interaction of Competence and Composition

We are particularly interested in whether composition correlates
with powers. One hypothesis is that judges will resist external regu-
lation and control. Therefore if non-judges are the majority on the
council, we might observe that the Council is given less substantive
powers, but when judges are the majority, powers are high. A compet-
ing hypothesis is that judicial councils (a relatively late historical
development) have been set up to control judges and ensure account-
ability. If this were the case, we should see the percent of judges on
the council negatively correlated with the extent of powers. 70
We can frame this as the question of whether judicial councils
are set up to ensure independence of judges from the principals or
accountability to the principals (see Figure 1). If judges are a majority
on the council, the assumption is that judges utilize the council to
exercise self-government and maintain independence. If judges are a
minority on the council, the assumption is that the council is a device
to constrain the judges and render them more accountable. These two
71
types of councils reflect quite different goals.
To summarize, judicial councils will vary in terms of their compe-
tencies and their structures. Interacting competences with
composition, we can imagine different configurations. We view exten-
sive competence of a judicial council as enhancing judicial
accountability. We follow the conventional wisdom that assumes that
judicial majorities on the judicial council promote independence. In-
teracting these two dimensions, we can see that there are several
possible configurations (see Figure 2). Extensive competences create
strong councils whereas those limited to housekeeping functions are
considered weak councils. Judicial dominance of the council means
that they are less likely to be politicized. Nevertheless, the shape of
the council will depend on whether or not the judges in the council
behave as a homogeneous body. That is easily achieved when judges
come from superior courts since these judges will tend to reinforce
the judicial hierarchy. If the judges come from various different
courts, there may be intra-judicial politics that prevent the judiciary
from acting in unified fashion: we may sometime observe the emer-
70. On the other hand, the politics of setting up the councils may vary greatly
depending on local circumstances, in particular the historical balance of power be-
tween government and Supreme Court. For example, the extent to which the justices
are easily captured by the government will result in different models of judicial
council.
71. Hanssen's data from the United States suggests that the timing of the adop-
tion of council-type mechanisms reflects these motivations.
gence of judicial associations or unions that provide a solution to

collective action problems.
Figure 2 displays the various models, along with some examples
of their operation.
FIGURE 2: COMPETENCE AND COMPOSITION: TYPOLOGY OF JUDICIAL

COUNCILS COMPOSITION
JUDGES FROM
SUPREME JUDGES FROM
COURT LOWER COURTS NON-JUDGES
COMPETENCES DOMINATE DOMINATE DOMINATE
EXTENSIVE STRONG STRONG NON- POLITICIZED
(DISCIPLINE, HIERARCHICAL HIERARCHICAL JUDICIAL
REMOVAL, JUDICIAL JUDICIAL COUNCIL
PROMOTION, COUNCIL (JAPAN, COUNCIL (ITALY, (ECUADOR,
APPOINTMENTS) MEXICO, FRANCE) BARBADOS,
THAILAND) SINGAPORE)
INTERMEDIATE HIERARCHICAL NON- JUDICIAL
(APPOINTMENTS SELF- HIERARCHICAL APPOINTMENTS
ONLY) REGULATING SELF- COMMISSION
JUDICIAL REGULATING (USA, UK,
APPOINTMENTS JUDICIAL CANADA,
COMMISSION APPOINTMENTS NETHERLANDS,
(BANGLADESH) COMMISSION GERMANY)
(BELGIUM)
MINIMAL WEAK JUDICIAL WEAK JUDICIAL WEAK JUDICIAL
(HOUSEKEEPING COUNCIL COUNCIL(BRAZIL, COUNCIL
FUNCTIONS) (PANAMA) HUNGARY) (PARAGUAY)
This discussion suggests that councils are not all of a same type. Lo-
cal institutional problems, represented by the location in Figure 1,
will produce pressures for different types of councils in different cir-
cumstances. Even within a country, we may see variation over time
as different institutional problems arise.
IV. EMPIRICAL DATA ON COUNCILS
We have developed a small database on Judicial Councils (see

Appendix). The sample consists of the councils in 121 different na-
tion-states. Data was gathered for the most recent iteration of the
judicial council available. For ninety-three countries, the Judicial
Council is mentioned and described in the country's constitution, so
we gathered our information from there. 72 For twenty-eight other
countries, the Judicial Council is not mentioned in the Constitution,
or it provides no detail on the composition and powers of the Judicial
Council. In these countries, the Judicial Council is left to ordinary
72. This data is from the Comparative Constitutions Project at the University of
Illinois; available at www.comparativeconstitutionsproject.org
20091 JUDICIAL COUNCILS AND JUDICIAL INDEPENDENCE 123
law. We gathered data on these countries from an array of sources,

including the 2002 study of Hammergren 73 and a number of country-
specific sources. Figures 3a and 3b provide some indication of the
trends over time and space.
FIGURE 3A: CONSTITUTIONALIZED JUDICIAL COMMISSIONS OVER TIME
. o
o
.2O
C.
C
41
1900 1920 1940 1960 1980 2000

Year
Source: University of Illinois Comparative Constitutions Project,
www.constitutionmaking.org
Note that the issue of whether or not a council is constitutional-

ized is itself interesting. If the composition and powers of the council
are left to ordinary law, they are subject to enhanced manipulation
by the government and other actors and hence less of a guarantee of
independence. Presumably those councils lean more toward the ac-
countability pole than the independence pole. Conversely, when the
council structure is entrenched in the constitution, it is beyond the
reach of ordinary politics and hence likely to reflect a desire for
greater levels of judicial independence and insulation. In the results
that follow, we predict and find systematically lower independence
scores for countries with non-constitutionalized councils. 7 4
73. Hammergren, supra note 21.

74. Judicial independence on every measure is lower for these countries. Coun-
tries with constitutionalized judicial councils have a mean De Facto Independence
(Voigt) score of .51, while those with nonconstitutionalized councils have score .41,
though the n is too low to determine a significant difference in means. Using Howard
and Carey's measure ofjudicial independence, the means are .47 and. 16 respectively,
significant at the .01 level.
FIGURE 3B: CONSTITUTIONALIZED JUDICIAL COMMISIONS BY

REGION IN 2000
S
C.
0
0
C3 N
First, we developed a simple ordinal index of powers/compe-

tences ("<Power Index"). Each judicial council was rated depending on
the extent of its competences. A council that had purely administra-
tive or housekeeping functions council was coded as 1; a council with
a role in appointment, transfer, and discipline of judges was rated a
3. The intermediate rating of 2 was given to councils that had a lim-
ited role either because they could appoint but not discipline judges,
or their role was limited in performance-relevant variables. For ex-
ample, a council that only had a role in recommending judges for
appointment or minimal role in discipline would be rated a 2. We also
include information on countries without judicial councils, an impor-
tant control group. These are denoted by power index 0. A complete
coding of countries with judicial councils is in the Appendix.
Our first prediction was that competences would vary systemati-
cally depending on the institutional problem that is faced. Extensive
competences correlate with stronger councils. Stronger councils, how-
ever, can reflect demands for strong political control and
accountability-or judicial self-regulation effectuated by capture of
the council. Sorting out which motivation exists in particular con-
texts is difficult. To evaluate this issue, we use the working
assumption that a majority of judges on the council indicates a
greater degree of judicial self-regulation.
A. Power of Judges and Institutional Structure
When judges have extensive powers, judicialization of public pol-

icy is likely to follow. In such environments the judicial council may
reflect demands for control and accountability. We expect this will be
more likely in common law countries as well as any country in which
ordinary judges can engage in the power of judicial review. By con-
trast, where judicial review is limited to a specially designated
constitutional court, we do not expect to observe the same level of
demand for accountability of the ordinary judiciary, of the type asso-
ciated with judicial councils. This is because the major issues of social
policy will more likely be constitutionalized, so the constitutional
court will insulate the ordinary judiciary from politicization, to some
degree.
We find only partial support for these conjectures in the descrip-
tive data. Where judicial review is conducted by ordinary courts,
competences are less likely to be extensive. In general, common law
judicial councils are more likely to have extensive powers, not less.
On the other hand, both common law systems and those in which
ordinary courts have the power of judicial review are less likely to
have a majority of judges on the council, indicating some desire for
external control of judges. (Note that the last column ofFigure 4 is
based on a smaller sample of countries because data on Council com-
position was unavailable for some systems.)
FIGURE 4: JUDICIAL POWERS, COUNCIL COMPETENCE
AND COMPOSITION
Feature of Court Judicial Majority

System Judicial Council Power Index on Council?
1 2 3
Judicial Review by 9% 44% 47% 40%
ordinary courts?
Common Law? 8% 34% 58% 42%
To understand the relationship between composition and compe-

tence, we divide our sample into three groups using to the power
index. We then examine whether an assignment of more extensive
powers is associated with a higher percentage of judges on the coun-
cil. Our results exclude cases for which all information is not
available; this leaves seventy-four cases. In addition, we can ignore
the small number of councils with purely managerial functions.
Councils with the full array of powers have, at the mean, a (bare)
majority of judges; councils with reduced powers have a minority of
126 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 57
judges.7 5 Using the median rather than mean levels illustrates the
difference more starkly: the median council with the full array of
powers has sixty percent judges; the median council with reduced
powers has twenty-nine percent judges.
FIGURE 5: PERCENTAGE OF JUDGES ON COUNCIL, BY POWER INDEX
Power index Mean % of judges N Std. Deviation

1 .75 5 .28
2 .39 31 .32
3 .50 38 .29
Total .47 74 .31
In short, powers and composition go together, but in two differ-

ent configurations. When councils are very weak (power index 1),
judicial involvement is extensive. When powers are extensive (power
index 3), judicial involvement is also relatively high. In the interme-
diate situation, judicial involvement is lower. We interpret this
finding as reflecting the upper right and lower left quadrants of Fig-
ure 1. Judicial involvement can be extensive when it does not matter
much; but it can also reflect a very powerful and independent judici-
ary that is extensively involved in politics.
B. Regime Type
It is possible that regime type can play some role in sorting out
the various configurations we observe. We predict that autocracies
will feature councils with weak competences (ineffectual council) or
strong competences/fewer judges (for greater political control). 76 For
democracies, we predict greater variety, depending on other elements
of the institutional configuration. To explore this, we divide constitu-
tions containing provisions on judicial councils into three categories:
those that are written in autocracies, those written in established de-
mocracies, and those written in transitions between autocracy and
democracy. 77 We use data available from political scientist Carles
Boix, who uses other generally available data to make binary charac-
terizations of countries as autocracies or democracies in a large time-
series. 78 We find that the percentage of judges tends to be lower in
75. A difference of means test gives a t-stat of -1.48 (85% confidence level), indi-
cating close to statistical significance.
76. Logit regression confirms the direction of this relationship, although not at
statistically significant levels.
77. There are no cases in our sample of democracies transitioning to autocracies.
78. CARLES Boix, DEMOCRACY AND REDISTRIBUTION (2000); Carles Boix, Constitu-
tions and Democratic Breakdowns, paper presented at Comparative Law and
Economics Forum, Chicago (Oct. 2005). For each constitution, the country's autocracy/
autocracies rather than democracies, although t-tests indicate the

difference of means is not quite significant. Still, the crude data indi-
cates a mild tendency of autocracies to distrust judges.
FIGURE 6: PERCENTAGE OF JUDGES ON COUNCIL, BY REGIME TYPE
Regime type Mean %of judges N Std. Deviation

Autocracy .38 29 .30
New Democracy .48 25 .33
Established democracy .47 30 .30
Total .43 84 .32
C. Councils and Independence
Finally, we wish to examine whether the variables of composition

and competence correlate with variables such as judicial quality and
independence. This is an important question given that judicial coun-
cils are offered as a "best practice" to promote judicial independence.
As an initial step, we use the Judicial Independence scores produced
by Howard and Carey (2004). 79
They analyzed the U.S. Department
of State's Annual Human Rights Reports for a series of years in the
1990s to produce dummy variables for individual, collective, and
overall judicial independence. We used the last year available (typi-
cally 1999).80
Here again we see a trend toward more independence with
greater competences of the judicial council, suggesting that perhaps
councils do increase independence as their proponents assert. There
is a potential problem, however: any index that draws on formal
structures for the definition of judicial independence raises en-
dogeneity problems. It is possible, for example, that the State
Department's assessment is itself affected by whether or not a coun-
try has a judicial council. To overcome this problem, we need to
examine judicial independence as exists on the ground, rather than
relying on formal or structural independence. While this is somewhat
difficult to assess, we are fortunate that Professor Voigt and his co-
authors have developed separate indices for de facto and de jure inde-
democracy status was considered for the five years preceding the constitution and
immediately afterwards. If the country was rated a democracy in the year of or imme-
diately following the promulgation of the constitution, and had been an autocracy at
any time in the five preceding years without an intervening constitution, it was con-
sidered to have undergone a transition from autocracy to democracy.
79. Robert Howard & Henry A. Carey, Courts and PoliticalFreedom: A Measure
of JudicialIndependence, 87 JUDICATURE 285 (2004).
80. We focus on their "individual independence" score, which exhibits much more
variance than their collective independence indicator.
FIGURE 7: JUDICIAL INDEPENDENCE (HOWARD-CAREY "INDIVIDUAL

INDEPENDENCE"), BY POWER INDEX
Power index Mean N Std. Deviation

1 .57 7 .53
2 .55 40 .50
3 .67 51 .47
Total .61 98 .49
pendence. 8 ' Voigt's de facto index is composed of a number of

variables that are likely to impact actual levels of independence, such
as the number of times rules governing appointment or court struc-
ture have changed, whether judicial budgets and income have
remained constant, whether judges have been removed from office,
and instances of non-implementation of judicial decisions. Using this
more refined index, it does not appear obvious that de facto judicial
independence scores increase with the level of powers for the judicial
council.
FIGURE 8: JUDICIAL INDEPENDENCE DE FACTO (VoIGT), BY

POWER INDEX
Power index Mean N Std. Deviation

1 .56 5 .24
2 .51 15 .25
3 .50 26 .23
Total .51 46 .23
We also can consider the effect of various features of judicial

councils on metrics of judicial independence. Figure 9 presents four
models using different dependent variables measuring different as-
pects of judicial independence and quality. In each case, we examine
the effects of two different features of judicial councils widely be-
lieved to enhance independence: strong powers and a majority of
judges on the council. In no case do either of these indicators ap-
proach statistical significance when controlling for common law and
GDP. These results are robust to alternative specifications when each
81. Lars Feld & Stefan Voigt, Economic Growth and Judicial Independence:
Cross-Country Evidence Using a new set of Indicators, 19(3) EUR. J. POL. ECON. 497-
527 (2003); Bernd Hayo & Stefan Voigt, Explaining De Facto Judicial Independence,
Marburg Papers on Economics No. 07-2005 (2005), available at http://www.uni-mar-
burg.de/fb02/makro/forschunggelbereihe/artikel/2005-07-hayo.pdf (last visited Aug.
10, 2007).
feature is included on its own. We find no evidence in support of the

presumed relationship between council structure and judicial inde-
pendence or quality.
A final bit of evidence comes from preliminary analysis of World
Bank Rule of Law data on those countries which appear to have
adopted a judicial council after 1996. This data shows that more
countries suffered a decline in quality of rule of law than an increase.
Thirty-nine countries suffered a decline in Rule of Law rating be-
tween adoption and 2005, whereas only twenty-seven countries
showed an increase.8 2 It seems that the emergence of judicial councils
as an international "best practice" for promoting judicial indepen-
dence and quality may be unjustified.
FIGURE 9: COUNCIL FEATURES AS PREDICTORS OF

JUDICIAL INDEPENDENCE
De Facto
Rule of Law Judicial Judicial Judicial Quality/
8 3 8 4 8 5 8 6
Dependent Variable Index Independence Independence Formalism
Constant -1.08 0.41 0.31 0.25

Percent of judges on
council 0.21 0.15 0.08 0.10
Strong powers of
council 0.08 0.00 0.10 0.05
Common law dummy .22* -0.16** 0.18 0.16
GDP per capita .01*** .01* .00*** .01*
2
R .78 .23 .45 .19
= significant at the 10% confidence level; ** = significant at the 5% confidence level;
significant at the 1% confidence level
The above results suggest the need to focus on a more dynamic

model of council structure. Clearly the effects are not linear. Rather,
there is a complex relationship between council structure and politi-
cal incentives of the various actors at the time of adoption. Ideally, we
would be able to model the decision to adopt a judicial council as a
product of the political factors we identify. However, we face two
daunting data challenges that prevent us from specifying such a
model. First, we would need comprehensive data on the judicial ap-
pointment systems of all countries, including those without a council,
82. Data on file with authors.

83. World Bank, Worldwide Governance Indicators 1996-2006, available at http:fl
web.worldbank.org/WBSITE/EXTERNAL/WBI/EXTWBIGOVANTCOR/O,,content
MDK:20771165-menuPK: 1866365-pagePK:64168445-piPK:64168309-theSitePK: 1
740530,00.html.
84. See supra note 81.
85. See Howard & Carey, supra note 79
86. Simeon Djankov et al., Courts: The Lex Mundi Project, CEPR Discussion
Papers 3344 (2002).
before and after the adoption. Although Hanssen was able to gather
some such data in the United States, we have found no comparable
sources across a large number of countries. 8 7 Second, we would need
refined indicators of political variation across countries over time. We
are not convinced that any one indicator would serve as an ideal
proxy for the myriad conditions that lead countries to adopt judicial
councils. Our preliminary conclusion, then, is that there is no evi-
dence that judicial councils promote independence.
V. CONCLUSION
This Article is a first examination of judicial councils, a relatively

new institution associated with attempts to enhance judicial indepen-
dence. We began by providing a comprehensive view of common-law
judicial appointment commissions and civil-law high judicial coun-
cils. We have argued that the different designs aim at achieving the
appropriate balance between independence and accountability in the
face of two recurrent phenomena: the politicization of the judiciary
and the judicialization of politics. We provide a typology of judicial
councils by looking at two crucial elements, composition and compe-
tences, and test their interactions.
Our empirical observation of patterns of institutional design
show that competence and composition interact in complex ways to
respond to particular institutional problems. We also found little evi-
dence in favor of the widespread assumption that councils increase
quality or independence in the aggregate. Therefore, we emphasize
the complexity of the role of a judicial council and reject the simplistic
view that importing or transplanting certain types of judicial council
is likely to have a decisive impact on the quality of the judiciary. We
thus reject the view of international organizations that assert that
judges should always and everywhere form the majority of members
88
on the Council.
Our framework also explains why it is that councils persist as
institutions. Because they involve actors from multiple different are-
nas, the council itself promises that no one institution can easily
dominate the judiciary. The councils, once created, provide an arena
for competition and the eternal struggle to calibrate independence
and accountability. We thus predict that councils themselves will fre-
quently become the targets of institutional reform, as examples from
Italy, Brazil and elsewhere demonstrated.8 9 We also can understand
87. Cf. Hannsen, supra note 47.
88. Autheman & Elena, supra note 26.
89. Autheman & Elena, supra note 26, provide a very interesting report of survey
data from five Central American countries. Respondents in those countries that had a
judicial council reported that the Council had had a negative impact on judicial inde-
pendence. Respondents in those countries that did not have a judicial council felt that
adopting a judicial council would increase judicial independence. Id. at 4. These two
why they have been widely adopted, notwithstanding little support

for claims that they enhance independence: councils allow a wide
number of stakeholders to participate in discussions of judicial
governance.
Finally, we introduce the notion of the politically accountable but
strong judiciary. In many ways, this ideal type is more desirable than
the conventional view that judicial independence is an unqualified
good. Those who emphasize judicial independence too often do not ar-
ticulate the need for accountability, which provides the crucial other
side of the proverbial coin.
These findings have important implications for the ongoing de-
bate on judicial appointments in the United States. Rather than
assume that merit commissions, the American counterpart to judicial
councils, always enhance independence, scholars should conduct
more thorough empirical research to understand the precise determi-
nants of independence and accountability. Our case studies suggest
that these determinants are highly context-specific and not suscepti-
ble to one-size-fits-all solutions.
results are not contradictory from our point of view. First, the two sets of countries
have different starting places and are likely to vary systematically. Second, the coun-
tries that have adopted judicial councils may have done so to enhance accountability
rather than independence, in which case, respondents are observing a successful
institution.
APPENDIX: DATA ON JUDICIAL COUNCILS
Country Number of Members Proportion of Judges Power Index

Albania 15 0.67 3
Algeria 3
Andorra 2
Angola 3
Argentina 2
Armenia 3
Bahamas 3
Bahrain
Bangladesh 2
Barbados 3
Belgium 2
Belize 3
Benin 2
Bolivia 2
Bosnia-Herzegovina
Botswana 3
Brazil 1
Bulgaria 3
Burkina Faso 2
Burundi 0.47 3
Cameroon 3
Cape Verde
Central African Republic
Chad 3
Chile
China
Colombia
Comoros
Costa Rica
Cote D'Ivoire
Croatia
Cyprus
Democratic Republic of
Congo
Dominica
East Timor
Ecuador
Egypt
El Salvador
Equatorial Guinea
Eritrea
Ethiopia
Fiji
France
Gabon
Gambia
Guatemala
Ghana
Greece
Guyana
Hungary
Indonesia
Iraq
Israel
Italy/Sardinia
Jamaica
Kazakhstan
Kenya 5 0.6 3
Kuwait
Latvia 3
Lebanon 15 0.53
Lesotho 4 0.25 3
Lithuania 3
Macedonia 7 0 3
Madagascar 1
Malawi 3
Malaysia 2 0
Mali 2
Malta 10 0.5 2
Marshall Islands 3 0.33 3
Mauritius 4 0.5 2
Mexico 4 1 3
Moldova 11 0.55 3
Mongolia 2
Morocco 0.86 2
Mozambique 16 0.56 2
Namibia 4 0.25 2
Nepal 5 0.6 3
Niger
Nigeria 3 1 2
Pakistan 5 1
Palau 7 0.14
Panama 8 0.63 1
Papua New Guinea 5 0.4
Paraguay 8 0.13 2
Peru 7 0.14 2
Philippines 0.22 2
Poland 15 2
Portugal 17 0.47 3
Republic of Congo 3
Romania 19 0.79 3
Rwanda 1 2
Saint Vincent 2
Samoa 3 0.33 3
Senegal 2
Seychelles 3 0 2
Sierra Leone 4 0.5 2
Singapore 6 0.4 3
Slovakia 3
Slovenia 11 0.55 2
Solomon 4 0.25 2
Somalia 2
South Africa 23 0.13
Spain 22 0.59
SriLanka 3 1 3
Sudan 1
Syria 3
Tajikistan 0 2
Tanzania 6 0.5 3
Thailand 15 0.87 3
Togo 9 0.78 3
Trinidad 0.4 3
Tunisia
Turkey 7 0 3
Uganda 0 3
Ukraine 20 0.20 3
Uruguay 7 0.43 3
Vanuatu 4 0.25 2
Venezuela 8 0.5 3
Zambia 3
Zimbabwe 6 0.17 2
Key: Power Index has value 1 for purely administrative functions, value 2 for involvement
in appointments, and value 3 for roles in both appointment and discipline, removal or
promotion of judges.
EAST AFRICAN JOURNAL OF
PEACE & HUMAN RIGHTS
Volume 18 Number 2, 2012
EDITORIAL COMMITTEE
SCHOOL OF LAW, MAKERERE UNIVERSITY
Managing Editor
J. Oloka-Onyango
HURIPEC
Editor
Denis A. Katebire
HURIPEC
COMMITTEE MEMBERS
Samuel Tindifa Fredrick W. Jjuuko Hadija Namyalo

HURIPEC Law & Jurisprudence Public & Comparative Law
Sylvia Tamale Christopher Mbaziira Esther D. Naggita

Law & Jurisprudence HURIPEC Law & Jurisprudence
Henry Onoria Robert Kirunda Phionah Muhwezi-Mpanga

Public & Comparative Law Public & Comparative Law Commercial Law
Assistant Editor
Francis X. Birikadde
HURIPEC
2012] Kenyan Courts & Rule of Law 357
KENYAN COURTS AND THE POLITICS OF THE RULE

OF LAW IN THE POST-AUTHORITARIAN STATE
Migai Akech* & Patricia Kameri-Mbote**
ABSTRACT
This article examines the performance of the judiciary as a neutral and

legitimate arbiter among competing political interests in Kenyan society. It
illustrates the failure of the judiciary in executing this mandate by examining
the role that courts have played in the establishment of the rule of law in the
post-authoritarian state by providing an account of judicial engagement with
political processes since the return to multi-party democracy in 1991. It
attributes this failure to a lack of institutionalization which has predisposed
judicial officers to manipulation both by the executive branch and the Chief
Justice (who heads the judiciary). It commends the 2010 Constitution of
Kenya for setting out the principles and mechanisms that can provide the
requisite institutionalization of the Judiciary, and sees a need for fortitude in
the reconstituted Judicial Service Commission, and vigilance among citizens
to ensure faithful and speedy implementation of the provisions of this
constitution.
I. INTRODUCTION
Following the announcement of the results of the highly contested presidential election
in December 2007, Kenya experienced an unprecedented magnitude of violence,
leading to about 1200 deaths and the displacement of about 600,000 from their homes.1
This anarchy was a clear demonstration of the collapse of state governance institutions,
since citizens took the law into their own hands to express their dissatisfaction with
the manner in which the presidential election had been conducted. Arguably, this
breakdown of law and order was a castigation of the countrys judiciary, which ought
to have provided a civil avenue for the resolution of the disputes arising out of the
fiercely contested presidential election. As it turned out, the opposition party that had
* Associate Professor of Law, University of Nairobi. Email:<migai.akech@gmail.com>

** Professor of Law, University of Nairobi. Email:<pkameri-mbote@ielrc.org>
1. See, e.g., HUMAN RIGHTS WATCH, BALLOTS TO BULLETS: ORGANIZED POLITICAL VIOLENCE
AND KENYAS CRISIS OF GOVERNANCE (2008), available at <http://www.unhcr.org/refworld/docid/
47de7bd22.html [accessed 23 November 2012]; KENYA HUMAN RIGHTS INSTITUTE (KHRI), CLARIFYING
HUMAN RIGHTS VIOLATIONS IN THE KENYA POST-ELECTION CRISIS (Special Brief 02/2008, 2008).
358 East African Journal of Peace and Human Rights [Vol. 18:2
lost the election unfairly in its perception, and its supporters, had no faith in the ability
of the judiciary to be a neutral arbiter in this dispute. The opposition party pointed out
that while the dispute was still in its inchoate stages, the Chief Justice quickly rushed
to State House, the presidential residence, and presided over a brief and clandestine
swearing in of the incumbent president.
A second illustration that the judiciary does not command the respect of
significant segments of the populace is the emergence of a culture of impunitya
common subject of discussion in national newspapers.2 This culture is manifested when
powerful and rich actorsusually government operativesact in total disregard of the
law knowing that their actions will go unpunished.3 Such powerful actors often ignore
court orders with impunity4 and are also able to obtain favourable and jurisprudentially
difficult to rationalize decisions from the courts. This particularly applies to cases
involving allegations of grand corruption.5 The public thus perceives courts as either
unimportant or as interpreting the law in a manner that does not make it a fair and
legitimate institution for the resolution of societal problems and disputes. The
Commission of Inquiry established to investigate the violence that followed the
December 2007 elections, noted that the judiciary has acquired the notoriety of losing
the confidence and trust of those it must serve because of the perception that it is not
independent as an institution.6
This article examines the performance of the judiciary as a neutral and
legitimate arbiter among competing political interests in the Kenyan society illustrating
its failure in executing this mandate. A major cause of the failure has been the
relationship between the judiciary and the executive powers-that-be from the colonial
period, through the authoritarian and post-authoritarian periods of independence.
While arguing that judicial subservience to the dictates of the executive has
been widespread, the article also points to significant instances where particular judges
have resisted executive dictates. The article argues that these dictates, which are not
usually explicit, have historically been aided by the absence of institutional mechanisms
2. See, e.g., Dominic Odipo, We Cannot Let Ministers Break Laws, EAST AFRICAN STANDARD,
June 30, 2008, at 8; Edward Kolla Wangila, Impunity at the Top is Kenyas Undoing, SATURDAY NATION,
July 5, 2008, at 11.
3. REPUBLIC OF KENYA, REPORT OF THE COMMISSION OF INQUIRY INTO POST ELECTION
VIOLENCE (CIPEV) (2008), at 443-469 (hereinafter REPORT OF CIPEV).
4. WINNIE MITULLAH, MORRIS ODHIAMBO & OSOGO AMBANI, KENYAS DEMOCRATIZATION:
GAINS OR LOSES? (2005), at 52-3.
5. See, e.g., Republic v. Judicial Commission of Inquiry into the Goldenberg Affair ex parte
Saitoti [2006] eKLR; Kotut v. Bosire & 2 Ors [2008] eKLR.
6. REPORT OF CIPEV, supra note 3, at 462.
for regulating judicial power. This lack of institutionalization is partly attributable to

the politics of regime maintenance, which has seen successive governments seeking to
control the judiciary as a principal means of furthering regime goals. While Kenyas
new Constitution, promulgated on the 27th of August 2010, establishes principles and
mechanisms that promise to free the judiciary from the stranglehold of the executive,
the article sees a need for fortitude in the reconstituted Judicial Service Commission,
and vigilance among citizens to ensure faithful and speedy implementation of the
provisions of this constitution.
Part II examines the nature of judicial power and the ideal role that courts
should play in fostering the rule of law and democracy. It argues that the twin concepts
of judicial independence and accountability are important in fostering the fairness and
legitimacy of the judiciarys oversight of politics and historicizes the engagement of the
judiciary in Kenyan politics while problematizing its role in fostering the rule of law
and democracy. Part III examines the role of the courts of law in the establishment of
the rule of law in the post-authoritarian state, and provides an account of judicial
engagement with political processes since the return to multi-party democracy in 1991.
The concluding Part IV analyzes the provisions of the 2010 Constitution on the
judiciary, which promise to ensure that judicial oversight of politics is fair and
legitimate, and the challenges of implementing them.
II. JUDICIAL POWER, RULE OF LAW, AND DEMOCRACY
A. General Principles
Judicial power is defined as the power which every sovereign must of necessity have
to decide controversies between itself and its subjects, whether the rights relate to life,
liberty or property.7 According to J.B. Ojwang, judicial power also entails obligatory
authority, that is an ability to take action to enforce decisions.8 This is a far-reaching
power, exercised by judges in applying and interpreting the law enacted by the
legislature. Indeed, in exercising this power, judges often make new laws.
Compared to the executive and legislative powers, judicial power is often the
most controversial since it is exercised by judges and other judicial officers who are
appointed and are therefore not accountable to the electorate in the same way as
7. Griffith, C.J. in Huddart, Parker & Co. Ltd v. Moorhead (1909) 8 CLR 330 (Australia).
8. J.B. OJWANG, CONSTITUTIONAL DEVELOPMENT IN KENYA: INSTITUTIONAL ADAPTATION AND
SOCIAL CHANGE 158 (1990).
members of the executive and legislature.9 Thus courts are often perceived as
undemocratic and a threat to good government because judges are not elected.10
According to this viewpoint, people should be governed only by laws to which they
have consented through a majority of their elected representatives11 and it is
unacceptable that unelected judges should influence the laws governing the citizenry.12
However, critics of the view that judicial power is undemocratic maintain that
majority rule is itself undemocratic, and is a feature of less desirable forms of
government such as fascism and communism. To distinguish itself from these other
forms of government, democracy must have mechanisms for limiting the will of the
majority so that it can respect the rights of minorities.13 In the absence of such
mechanisms, majority rule is likely to lead to tyranny of the majority. For this
reason, it is pointed out that it is impossible for majority rule to produce laws that apply
fairly to all citizens; majority rule tends to sacrifice the individual to the greater good
of the majority.14 In any case, even where they are well-intentioned, legislators elected
by the majority enact laws that in practice give rise to lacunae, ambiguities and
applications that create injustice in particular situations, thus denying liberty, equality
and fraternity to some.15
The judiciary limits the will of the majority in a democracy and is thus critical
to the realization of the rule of law ideal defined as universal rules uniformly
applied.16 The rule of law ideal requires that the prescriptions of the law should be
applied consistently, and there must be considerable congruence between the rules
promulgated and their actual application to specific cases.17 The realization of the rule
of law ideal requires suitable application mechanisms, including an independent and
professional judiciary, easy access to litigation, and reliable enforcement agencies.18
The judiciary can only play this role legitimately if it is perceived to be independent and
impartial and is staffed by a cadre of professionally trained personnel who are
9. Beverley McLachlin, Judicial Power and Democracy, 12 SINGAPORE ACADEMY L. J. 311

(2000).
10. Id.
11. Id., at 313.
12. Id.
13. Id., at 314.
14. Id.
15. Id.
16. Frank Upham, Mythmaking in the Rule of Law Orthodoxy (Carnegie Endowment for
International Peace, Democracy and Rule of Law Project Working Paper No.30, 2002), at 14.
17. Andrei Marmor, The Rule of Law and its Limits (University of Southern California Law
School, Public Policy Research Paper No. 03-16, 2003), at 8.
18. Id.
insulated from political or other non-legal influences. The decision-making process

must be rational and predictable by persons trained in law; all legally relevant interests
must be acknowledged and adequately represented; the entire system must be funded
well enough to attract and retain talented people; and the political branches must respect
laws autonomy.19
From the foregoing, it would appear that the realization of the rule of law
requires judges who are not only angels (who are not subject to the influences of the
societies in which they live), but also geniuses whose understanding of the law is
unquestionable. The reality is somewhat different. In the first place, the realization of
the rule of law ideal is premised on the existence of judicial expertise premised on the
expectation that professionally trained judges are rational and insulated from political
or other non-legal influences. This premise is, however, faulty considering the vagaries
of expertise and the politics of judicial appointments. As in other contexts,20 the appeal
to judicial expertise is an attempt to take politics out of public decision-making
processes.
Law is, however, indeterminate and its prescriptions are often imprecise.21 The
objectives of legislation are not always universally shared and written laws are therefore
invariably the result of a process of negotiation and sometimes horse-trading. Novel
situations may also call for creative interpretation of existing prescriptions of the law
implying that laws made by the legislature require interpretation by administrators and
judicial officers, who therefore have wide discretionary powers in many cases. But
while vague legal prescriptions allow lawyers and judges to apply the law
instrumentally, they may be detrimental to the binding quality of the rule of law.22
The susceptibility of the prescriptions of the law to instrumentalism,
particularly in deeply divided societies, may serve to undermine the authority and
legitimacy of law and the claim that, as experts in law, judges only act rationally.23 In
such societies, legal decisions will be increasingly fused with political disputes, will
increasingly be based upon political judgments, and will increasingly be determined
according to the political predispositions of the judges;24 and [a]s a consequence of
19. Upham, supra note 16, at 14.

20. See, e.g., COSMO GRAHAM, REGULATING PUBLIC UTILITIES: A CONSTITUTIONAL APPROACH
(2000).
21. Timothy A.O. Endicott, The Impossibility of the Rule of Law, 19 OXFORD J. L. STUD. 5
(1999) (Observing that vague language is a pervasive legislative tool).
22. Brian Z. Tamanaha, The Tension between Legal Instrumentalism and the Rule of Law, 33
SYRACUSE J. INTL L. & COM. 152 (2005).
23. Id., at 153.
24. Id.
judges making what appear to be political rather than legal decisions, political fights
will increasingly break out over who will become judges.25
The proclivity of judges to make what appear to be political decisions is also
enhanced by the fact that they are often political appointees. This has two implications
for their role in a democracy. First, there is no guarantee that individuals will be
appointed as judges because they have expertise in law, and the judiciary may therefore
have politicians in robes in its midst. Secondly, even where the individuals who are
appointed as judges are acclaimed experts, there is no guarantee that their decisions will
not be influenced by non-legal factors. In this regard, it is useful to remember that very
often expertise can only illuminate choices, not decide them.26 After judges have
analyzed the law, they ordinarily have to make value judgments.
It can therefore be expected that the fact that they are political appointees will
sometimes influence how they make such value judgments. They may use their power
to pursue parochial interests or impose personal political preferences on the broader
society.27 Institutional mechanisms ensuring legitimate and accountable exercise of
judicial power is one way of averting this danger, and it is within this context that the
twin concepts of judicial independence and judicial accountability should be seen.
Independence means complete autonomy and insusceptibility to external
guidance, influence or control.28 Complete autonomy may however not necessarily
be desirable but giving judges a considerable measure of independence is instrumental
to the realization of the rule of law. This not only facilitates impartial decision-making,
it also preserves the integrity of the judiciary as a separate branch of government.29
According to Charles Gardner Geyh, if we want judges to decide cases on the basis
of facts as they find them and the law as they construe it to be writtenthen we must
insulate them from external influences that could corrupt their integrity or
impartiality.30 Judicial independence gives judges security in their positions so that
they are encouraged to decide cases without fear or favour, as required by the rule of
25. Id.
26. See, MICHAEL REAGAN, REGULATION: THE POLITICS OF POLICY 2 (1987). See also, SIDNEY
SHAPIRO & JOSEPH P. TOMAIN, REGULATORY LAW AND POLICY 42 (1993).
27. See, e.g., Duncan Kennedy, A Critique of Adjudication, FIN DE SIECLE 57 (1997); LOUIS
MICHAEL SEIDMAN, OUR UNSETTLED CONSTITUTION: A NEW DEFENSE OF CONSTITUTIONALISM AND
JUDICIAL REVIEW (2001); Mark Tushnet, Following the Rules Laid Down: A Citique of Interpretivism and
Neutral Principles, 96 HARV. L. REV. 781 (1983).
28. CHARLES GARDNER GEYH, JUDICIAL INDEPENDENCE, JUDICIAL ACCOUNTABILITY, AND THE
ROLE OF CONSTITUTIONAL NORMS IN CONGRESSIONAL REGULATION OF THE COURTS 9 (2003).
29. Id., at 13.
30. Id., at 13-14.
law ideal.31 Measures to give judges such security include affording them security of
tenure and assuring them a compensation that may not be diminished.32
However, even judges who are independent can abuse their power.
Accountability mechanisms facilitate the answerability of the judiciary and judges to
the public. It is critical in ensuring that those who wield power whose exercise may
adversely impact upon the vital interests of citizens are answerable for its exercise.
Accountability denotes a relationship between power-wielders and those holding them
to account in which the latter have the right to hold the former to a set of standards,
to judge whether they have fulfilled their responsibilities in light of these standards, and
to impose sanctions if they determine that these responsibilities have not been met.33
Accountability mechanisms ensure that power is exercised fairly and justly. In the case
of the judiciary, there is a need for mechanisms that facilitate its accountability as a
public institution, and also the accountability of judges for their behaviour and
decisions.34
According to Geyh, judicial accountability promotes three important values:
first, it promotes the rule of law by deterring conduct that could compromise judicial
independence, integrity and impartiality; second, it promotes public confidence in
judges and the judiciary; and third, it promotes institutional responsibility by rendering
the judiciary responsive to the needs of the public it serves as a separate branch of
government.35
B. The African Experience
In African countries, the democratic regulatory mechanisms outlined above are often
lacking, leading the courts to engage with political processes in a manner that
undermines public faith in the independence and impartiality of the judiciary.36 The
adoption of multi-party democracy in the early 1990s, which was heralded by many
31. See, e.g., William C. Whitford, The Rule of Law, WIS. L. REV. 728 (2000).
32. GEYH, supra note 28, at 10.
33. Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics,
99 AM. POL. SC. REV. 29 (2005).
34. Charles Gardner Geyh, Rescuing Judicial Accountability from the Realm of Political
Rhetoric (Indiana University School of Law Bloomington, Legal Research Paper No. 61, 2006), at 5.
35. Id., at 7.
36. See, e.g., Joel M. Ngugi, Stalling Juristocracy while Deepening Judicial Independence in
Kenya: Towards a Political Question Doctrine, in JUDICIARY WATCH REPORT JUDICIAL REFORM IN
KENYA 3 (2007).
commentators as Africas second liberation,37 was in many countries accompanied by

initiatives, to enhance the independence of the judiciary. On the assumption that the
African judiciarys primary problem was the lack of independence, many constitutions
were redesigned so as to secure judges in their jobs, salaries, jurisdiction, and
judgments.38 In doing so, it was hoped that African judiciaries would cease to serve
as passive instruments of legitimation for authoritarian regimes.39 This was done in
Nigeria for instance in 1999 with the hope that constitutional safeguards would rid its
judiciary of years of subservience under military rule.40 More than a decade after the
inception of these judicial reforms, it has become increasingly clear that getting the
shackles off requires more than normative reforms.
In H. Kwasi Prempehs words, in spite of the reforms judges in common-law
jurisdictions in Africa have continued to:
[D]isclaim any exercise of discretion on their part in matters of

interpretation. In practice too, they tend to follow strictly the dictates
of past precedents and usually give literal effect to the plain meaning
of legal texts. As a result, their methods of interpretation tend to be
narrow, rule-driven and text-bound.41
Prempeh suggests that the African judiciary has failed to liberate itself because of
recourse to tradition and long-standing common-law doctrine, an ingrained deference
to executive diktat, and the force of stare decisis.42 In his view, a judiciary habituated
by custom, training, or experience to the jurisprudence of executive supremacy is
excessively differential to the state and sees its institutional role primarily as one of
maintaining law and order, and not as protecting freedom or restraining
government.43 In the case of Ghana, he notes that since the new constitution went into
effect, the opinions and rulings of the courts suggest that the Ghanaian judiciary
37. See, e.g., Larry Diamond, International and Domestic Factors in Africas Trend Toward
Democracy (Working Papers in International Studies, I-92-14, The Hoover Institution, Stanford University,
1992).
38. H. Kwasi Prempeh, A New Jurisprudence for Africa, 10 J. DEMOCRACY 136 (1999).
39. Id., at 135.
40. Okechukwu Oko, Seeking Justice in Transitional Societies: An Analysis of the Problems and
Failures of the Judiciary in Nigeria, 31 BROOK. J. INTL L. 9 (2005).
41. Prempeh, supra note 38, at 140.
42. Id., at 139.
43. Id., at 139-140.
remains attached to a jurisprudence that is far more authoritarian than liberal.44 He

gives the example of a string of rulings that bespeak a lack of judicial solicitude for
freedom of expression and of the press, which have dampened public faith in the
courts.45
Writing on the Nigerian judiciary, Okechukwu Oko attributes executive
dominance to the absence of financial autonomy, corruption and deference of judicial
officers to executive actors.46 In some countries, this is also attributed to a colonial
legacy of executive dominance over the judiciary.47
In addition to these factors, the regime maintenance rationale that dictates
political life in much of Africa, and the absence of institutionalized accountability
mechanisms may equally be significant explanations for the continued subservience and
the lack of public accountability of the judiciary.48 Regime maintenance refers to the
efforts of political regimes to ensure their survival in the face of competition from rival
political groups and populations that do not accept their claims to legitimacy. Despite
the advent of multiparty democracy, many political regimes continue to lack legitimacy,
for example, because they have assumed the reins of power by manipulating electoral
processes49 and therefore need to control key institutions of government, such as
security forces and the judiciary.50 This control is exercised through the power of
appointment among others, which becomes a critical instrument for clientelism,51
corruption and manipulation.52
In this respect, it is interesting to note that Africas new constitutions have
largely preserved the imperial presidency, with its vast powers of patronage and
44. Id.
45. Id., at 137.
46. Oko, supra note 40.
47. See, e.g., Laura Bingham, Trying for a Just Result? The Hissene Habre Affair and Judicial
Independence in Senegal, 31 TEMP. INTL & COMP. L. J. 77 (2009).
48. See ALICE HILLS, POLICING AFRICA: INTERNAL SECURITY AND THE LIMITS OF
LIBERALIZATION (2000); and MIGAI AKECH, PRIVATIZATION AND DEMOCRACY IN EAST AFRICA: THE
PROMISE OF ADMINISTRATIVE LAW 26 (2009).
49. See, e.g., Migai Akech, Constraining Government Power in Africa, 22 J. DEMOCRACY 96
(2011).
50. Id.
51. Gero Erdmann & Ulf Engel, Neopatrimonialism Revisited Beyond a Catch-all Concept
(German Institute of Global and Area Studies (GIGA) Working Paper No. 16, 2006), at 20.
52. Oko, supra note 40.
clientelism53 and the President retains the power to appoint judges, in many cases
without reference to or approval by other state organs such as the legislature.54 In
addition, the appointment of judges is not always informed by objective criteria.55
In our view, this has three implications for the independence and accountability
of judges and the judiciary. First, it enhances the probability that appointees are not
necessarily the best equipped individuals in terms of legal expertise. Second, such
judges are starkly aware of their limitations, and will likely perceive it to be in their
self-interest to protect the interests of the political regime that appointed them and to
be apprehensive that the demise of the political regime that appointed them would
necessarily lead to their departure and inevitable loss of the perks, prestige and powers
of judicial office. Such judges may have strong incentives to contribute to the
maintenance of the appointing political regime and these incentives are enhanced in the
context of corruption that afflicts many African countries, and in which judges are often
enablers if not critical participants. Third, such judiciaries may adopt a siege mentality
and resist efforts to make them more accountable to the public. In this endeavour,
judiciaries in common-law Africa are ably aided by outmoded doctrines such as the sub
judice rule and the power of courts to punish for contempt of court. Thus the courts
continue to invoke the sub judice rule, for example, to sanction or punish persons and
media that publish contemporaneous opinions about matters pending before the courts,
even [though] they do not involve jury trials.56
Further, the common-law offence of contempt of court continues to be used to
punish individuals who criticize judicial decisions, on the pretext that such criticism
brings courts, judges or the administration of justice into public disrepute or contempt.57
The effect of the two doctrines is to squelch free speech which is critical for the
realization of the democratic governance ideal. It is important to point out that even
where individual judges are inclined to be independent, they are likely to be intimidated
53. See, H.K. Prempeh, Marbury in Africa: Judicial Review and the Challenge of
Constitutionalism in Contemporary Africa, 80 TULANE L. REV. (2006), at 54-55. See also, Bingham, supra
note 47, at 96 on Senegal; and Robert B. Seidman, Administrative Law and Legitimacy in Anglophonic
Africa: A Problem in the Reception of Foreign Law, L. & SOC. REV. 161 (1970) on the culture of autocracy
in Kenya as a colonial legacy.
54. See, e.g., Bingham, supra note 47, at 97-98; Oko, supra note 40; Charles Manga Fombad,
The Separation of Powers and Constitutionalism in Africa: The Case of Botswana, 25 B. C. THIRD WORLD
L. J. 301 (2005), at 328.
55. Oko, supra note 40, at 50.
56. Prempeh, supra note 53, at 69.
57. Id., at 69-70.
by the powers of the president and the chief justice to discipline or remove judges.58
These factors explain why the African judiciarys participation in politics continues to
be seen as illegitimate and controversial by large segments of the populace.
C. The Kenyan Experience
Although there were two main political parties when Kenya became independent in
1963 (the Kenya National African Union or KANU and the Kenya African Democratic
Union or KADU), Kenya quickly joined the ranks of the one-party states when KADU
was dissolved in 1964 and its members joined KANU.59 Kenya was to remain a de
facto one party state until 1982, when, following an announcement by a number of
prominent government critics that they would form an opposition party, the legislature
amended the constitution to legalize the one-party system.60 Dissent was not tolerated
in the one-party state, for the most part and governance was characterized by oligarchic
rule, with an imperial president at the helm.
The oligarchy prescribed a fairly narrow role for the judiciary. Thus unlike the
ideal situation where the judiciary should play the role of protecting minorities who are
not represented in majoritarian institutions of governance such as the executive and the
legislature, here the judiciary was to play a significant role in protecting the interests
of the oligarchy.61 In many ways, this represented a continuation of the policies and
practices of the colonial government.62 This circumscription of the role of the judiciary
was achieved through the establishment of constitutional rules that enabled the
executive to control the judiciary,63 which rules remained in place until the enactment
of a radically different Constitution in August 2010.64
In addition, the exercise of judicial power in Kenya has considerably been
influenced by a culture of judicial restraint, which has enabled the judiciary to avoid
confrontations with the executive in cases where their decisions are likely to affect
58. See, e.g., P. KAMERI-MBOTE & MIGAI AKECH, KENYA: THE JUSTICE SECTOR AND THE RULE
OF LAW (2011).
59. OJWANG, supra note 8, at 47. The one party-state had been justified as the only rational
and practical course in the organisation of new African states. Id., at 46.
60. REPUBLIC OF KENYA, CONSTITUTION OF KENYA AMENDED IN 1982 (1969).
61. Kuria G. Kamau & J. B. Ojwang, Judges and the Rule of Law in the Framework of Politics:
The Kenya Case, PUBLIC LAW 254 (1979).
62. See, e.g. Gary Wasserman, The Independence Bargain: Kenya Europeans and the Land
Issue 1960-1962, 11 J. COMM. POL. STUD. (1973).
63. Kuria & Ojwang, supra note 61.
64. KENYA CONST. (2010).
political outcomes.65 This cautious approach may in part be explained by fear of the
executive, which has wielded immense power over the judiciary. It should be noted,
however, that despite these rules some judges have defied the dictates of the executive
from time to time.
The rules that have enabled the executive to control the judiciary were found
in Kenyas repealed constitution.66 On the basis that an impartial and independent
judiciary would be required if the rule of law were to thrive in Kenya, section 184 of
the independence constitution established a Judicial Service Commission (JSC) to
regulate matters such as judicial appointments and discipline. The membership of the
JSC comprised the Chief Justice (as Chairman), two judges nominated by the Governor-
General (acting in consultation with the Chief Justice) and two members of the Public
Service Commission or PSC (nominated by the Governor-General acting in
consultation with the chairman of the PSC). Under section 172 of this constitution, the
Chief Justice was to be appointed by the Governor-General, acting in accordance with
the advice of the Prime Minister, while other judges were to be appointed by the
Governor-General acting in accordance with the advice of the JSC.
To further solidify the position of the judicial officers, this constitution
provided that offices of judges could not be abolished when there was a substantive
office holder.67 Judges could only be removed from office for inability to perform
functions or misbehaviour, a determination that would be made by an impartial tribunal
appointed by the Governor-General with appeal allowed to the Judicial Committee of
the Privy Council whose decision the Governor-General would act on.68 The JSC was
also given the power to appoint other judicial officers, such as magistrates.
Following numerous amendments to the independence constitution (now
repealed), the power of appointing the Chief Justice vested in the president, who was
no longer required to consult anybody. In addition, while the president was required
to consult the JSC in appointing judges, little if any consultation occurred in practice.
Further, section 62 of this constitution provided that the President could dismiss the
Chief Justice and other judges for inability to perform the functions of their office or
for misbehaviorif an impartial tribunal recommended their removal. Unfortunately,
this constitution did not spell out the ingredients of these offences and did not establish
due process mechanisms for transparent, objective, impartial and fair removal. In these
circumstances, the threat of removal operated as the proverbial Sword of Damocles,
65. See, e.g. Kibaki v. Moi & 2 ors (No.2) (2008), 2 KLR 308.
66. KENYA CONST. (rev. ed., 1992).
67. Id., at 267.
68. Id.
whose strike judicial officers could not foretell.69 Further, section 61(5) of this
constitution gave the President power to appoint judges in an acting capacity which
enabled the executive to control the judiciary to the detriment of judicial independence.
These repealed constitutional rules explained why the judiciary could easily be
deployed in regime maintenance endeavours.
In addition, the chief justice wielded immense powers that threatened the
independence of judges from 1989 when the judiciary was delinked from the public
service and placed under the Chief Justice, whose powers were thereby enhanced.70 As
the head of the judiciary, the chief justice had possessed wide ranging but unregulated
powers, including the power to determine which judges heard what cases, where
litigants could file their cases and how, supervising and disciplining judges and other
judicial officers, allocating office space, housing and cars to judicial officers,
transferring judicial officers from one geographic station to another, and disciplining
and initiating the process of removal of judges. The exercise of these powers had not
been regulated, and they had been abused to the detriment of judicial independence and
accountability. Thus, judges confronted with these powers could be inclined to do the
bidding of the Chief Justice. Moreover, because the appointment of the Chief Justice
had invariably been a prerogative of the president, it had not been difficult to imagine
how the judiciary could be deployed in regime maintenance schemes.
In these circumstances, the courts have often adopted a conservative or self-
censoring approach when adjudicating political matters. For example, Sir Charles
Newbold, then President of the East African Court of Appeal while espousing a
preference for conservatism on the part of the judiciary, stated that:
The courts derive a considerable amount of their authority and

perhaps, even more, the acceptance of their authority from their
independence of the executive, from their disassociation from matters
political. In a democracy... the determination of matters political ...
rests ultimately with the will of the people through the ballot box. For
that purpose, people elect the executive and the legislature and it is on
these two branches ... that the primary responsibility rests. The third
69. INTERNATIONAL COMMISSION OF JURISTS (KENYA), JUDICIAL INDEPENDENCE, CORRUPTION

AND REFORM 20 (2005), available at <http://www.icj.org/IMG/pdf/kenyareport.pdf> [accessed 14 January
2010] (Observing, The possibility that they could be next in line to be publicly castigated and removed
from office without due process has lowered the general esprit de corps of the judiciary as a whole.)
70. PAUL MWANGI, THE BLACK BAR: CORRUPTION AND POLITICAL INTRIGUE WITHIN KENYAS
LEGAL FRATERNITY 114 (2001). Until 1989, the judiciary was treated as a branch of the public service.
branch, the judiciary is not elected and should not seek to interfere in
a sphere which is outside the true function of the judges... it is the
function of the courts to be conservative, so as to ensure that the rights
of the individual are determined by the rule of law.71
By drawing such a distinction between the law and politics, it is arguable that the courts
had thereby relegated their role to a very small part of the rubric of public affairs. The
courts had therefore been likely to accord deference to the position of the executive
where the official action complained of was governed by a policy of the government,
relating to, for example, the maintenance of public order.72 This restrained approach
had often been adopted in cases concerning personal liberty, freedom of expression and
freedom of movement.73
Courts called upon by individuals who were victims of state repression to
protect their civil and political rights in the 1980s and early 1990s often adopted a
conservative approach, thus aiding such repression. The decision in Kamau Kuria v.
Attorney General,74 where the Government had confiscated the applicants passport
whose return he sought, is a good illustration. The High Court held that it would not
protect the applicants freedom of movement since the Chief Justice had not yet enacted
the rules of procedure for the enforcement of the Bill of Rights under the constitution.
The effect of this decision, which was followed in subsequent cases such as Maina
Mbacha v. Attorney General,75 was that the courts would not enforce the Bill of Rights
for as long as the Chief Justice chose not to enact the requisite rules of procedure. And
there was nothing in the constitution to compel the Chief Justice to enact those rules.
Even within this repressive dispensation however, some judges were brave
enough to make decisions against the regime. In Felix Njagi Marete v. Attorney
General,76 for example, the applicant, a civil servant, alleged that he had been
subjected to torture and inhuman treatment in contravention of section 74 of the
repealed constitutiondismissal for purported disloyal behaviour arising from his
activities in 1982 unlawful attempt to overthrow the government. He challenged his
dismissal in court which found no disloyal behaviour and ruled that the two and a half
years unpaid suspension constituted inhuman treatment and was contrary to section 74
71. Charles Newbold, The Role of a Judge as a Policy Maker, 2 EAST AFR. L. REV. 133 (1969).
72. J.B. Ojwang & J.A. Otieno-Odek, The Judiciary in Sensitive Areas of Public Law: Emerging
Approaches to Human Rights Litigation in Kenya, 35 NETHERLANDS INTL L. REV. 29 (1988).
73. Id.
74. (1989) 15 NAIROBI LAW MONTHLY 33.
75. (1989) 17 NAIROBI LAW MONTHLY 38.
76. High Court Misc. Civil Case No. 668 of 1986.
of the constitution. Unlike the court that would subsequently decide the Kamau Kuria
case, this court held that the Bill of Rights was enforceable, observing that the High
Court was empowered to award redress to any person who had suffered because the
State had contravened the protective provisions of the Constitution.
Another landmark case is Stanley Munga Githunguri v. Attorney General,77
where the applicant had been accused of certain violations of the Exchange Control Act.
In 1980, after an investigation, the Attorney General informed him that he would not
be prosecuted and stated publicly in 1981 in the National Assembly that Mr. Githunguri
would not be prosecuted. In 1984, a different Attorney General resurrected four of the
original charges. The issue before the court was whether the Attorney General could
institute criminal proceedings against a citizen despite the lapse of some eight years and
repeated assurances that the matter was closed. The court held that proceeding with the
prosecution would be vexatious and harassing to the accused, and would amount to an
abuse of the process of the court. Chief Justice Madan, who presided over the case,
observed in the unanimous decision of the court that the people will lose faith in the
Constitution if it fails to give effective protection to their fundamental rights. The
people know and believe destroy the rule of law and you destroy justice, thereby also
destroying the society.78
What explains these rare instances of judicial activism. One plausible
explanation is that the judges who presided over such cases were independent-minded
to an extent that they could not be restrained by the restrictive rules of appointment and
dismissal. Of Justice Madan, for example, it is said that [h]is performance as a lawyer,
politician and puisne judge revealed an independent minded revolutionary whose
deeply religious and conscientious character promised the presidents a Chief Justice
they could not control.79
III. COURTS AND THE RULE OF LAW IN THE POST-AUTHORITARIAN

STATE: 1991 TO PRESENT
The foregoing constitutional rules that enabled the executive to control the judiciary
have greatly influenced how the courts have engaged with political processes in the
post-authoritarian state. In order to place the role of the judiciary in this era in its
proper context, it is first of all useful to describe some of the significant political
changes that have taken place.
77. High Court Misc. App. No. 279 of 1985.

78. Id., at 23.
79. MWANGI, supra note 70, at 122.
The year 1991 is a landmark in Kenyas history for the reason that it ushered
in the era of multi-party democracy. It was in 1991 that the Moi government
succumbed to concerted pressure from the international community and local civil
society organizations to liberalize national politics by amending the constitution to re-
introduce plural politics. But Moi was an exceedingly reluctant democrat, and his
administration did all within its immense powers to frustrate the emergence and growth
of a vibrant multi-party democracy.80
Among other things, his regime effectively deployed the highly authoritarian
legislative and administrative framework to ensure that the newly formed opposition
political parties did not threaten its hold on power. Thus the Office of Registrar of
Societies established by the Societies Act was successfully deployed to facilitate the
disintegration of the formidable Forum for the Restoration of Democracy (FORD)
party, which clearly threatened to depose the Moi government. In addition, colonial-era
laws such as the Preservation of Public Security Act81 and the provisions of the Penal
Code on sedition82 were deployed to prevent the budding opposition parties from
organizing and soliciting public support. These laws made it exceedingly difficult for
opposition parties to hold political rallies. Opposition politicians were frequently
arrested, confined in police cells and arraigned in court on flimsy charges.
At the inception of multiparty politics, the Moi government was also firmly in
control of the only public media organization, the Kenya Broadcasting Corporation, and
also sought to control the liberalization and privatization of the media. Further, the
private media was frequently harassed by state security forces and some of their
publications were banned.83
The dawn of multi-party politics in Kenya also witnessed the emergence of
grand corruption, as the Moi regime sought to marshal the financial resources that
would enable it to fend off the significant threat presented by the opposition parties.
Kenyas grandest corruption scam, the Goldenberg scandal, was hatched and executed
at this time. In addition, the advent of multipartyism was accompanied by a
heightening of ethnicized politics and the re-emergence of the controversial
80. See, e.g., HUMAN RIGHTS WATCH, MULTIPARTYISM BETRAYED IN KENYA: CONTINUING
RURAL VIOLENCE AND RESTRICTIONS ON FREEDOM OF SPEECH AND ASSEMBLY (1994).
81. Cap 57, Laws of Kenya.
82. See sections 56, 57 and 58 of the Penal Code, which were repealed by Statute Law
(Miscellaneous Amendments) Act, 1997.
83. Publications that were banned included the Nairobi Law Monthly, Society and Finance.
majimboism debate.84 One of the manifestations of this enhanced politicization of

ethnicity has been the emergence of land clashes leading to the death and displacement
of people perceived to be outsiders in regions such as the Rift Valley and the Coast
Province, which land clashes have been a defining feature of all the general elections
that the country has held since 1992.
The Moi regime was able to retain power in the general elections of 1992 and
1997, leading the opposition parties to realize that the amendment of the constitution
to allow multi-party politics had only been a cosmetic change, and that fundamental
constitutional and legal reforms were required if Kenya was to become a real
constitutional democracy in which political power could be exchanged peacefully
between ruling and opposition parties.85 It is out of this realization that civil society
groups began to clamour for the review of the constitution.86 While the Moi regime at
first used highly draconian means, including the deployment of the state security
apparatus and authoritarian public order laws, to resist the calls for constitutional law
reform, it later sought to manipulate the clamour for change, a tactic which led to the
signing of an Inter-Parties Parliamentary Group (IPPG) deal87 and the enactment of a
Constitutional Review of Kenya Act88 to facilitate the process of reviewing the existing
constitution.
For our purposes, what is fascinating is how various political forces responded
to the transition from the authoritarian to the post-authoritarian state, and the role of the
courts in regulating political disputes during this period. As in all other political
contests, it can be expected that those who control or are favoured by the status quo
would do their very best to keep their benefits, while those who clamour for political
84. The term majimboism, which literally means regionalism, is commonly used in Kenya
to denote the idea of political devolution of power. The idea was developed in the early 1960s by minority
ethnic communities for whom it constituted a means of ensuring that they would not be dominated by the
larger ethnic communities. See, e.g., David M. Anderson, Yours in Struggle for Majimbo: Nationalism
and the Party Politics of Decolonization in Kenya, 1955-64, 40 (3) JOURNAL OF CONTEMPORARY HISTORY
547 (2005). On the majimboism debate, see HUMAN RIGHTS WATCH, DIVIDE AND RULE: STATE-
SPONSORED ETHNIC VIOLENCE IN KENYA (1993).
85. DAVID W. THROUP & CHARLES HORNSBY, MULTI PARTY POLITICS IN KENYA: THE
KENYATTA AND MOI STATES AND THE TRIUMPH OF THE SYSTEM IN 1992 ELECTION (1998); Stephen N.
Ndegwa, The Incomplete Transition: The Constitutional and Electoral Context in Kenya, 45 AFRICA
TODAY 193 (1998).
86. See, e.g, WILLY MUTUNGA, CONSTITUTION-MAKING FROM THE MIDDLE: CIVIL SOCIETY AND
TRANSITION POLITICS IN KENYA, 1992 - 1997 (1999).
87. See, Ndegwa, supra note 85.
88. Constitution of Kenya Review Act, 2000.
power would seek to acquire the benefits offered by the status quo.89 In this regard, the
transition from colonial rule offers an interesting parallel. Historical accounts
demonstrate quite clearly that Kenyas independence government sought to inherit the
colonial administrations power edifice, and not to replace it.90 Its objective was
continuity, not revolution. In similar vein, opposition parties in post-authoritarian
Kenya sought to inherit the Kenya African National Unions power edifice and did not
have any intentions of replacing it, despite much rhetoric to the contrary.
At any rate, key political contests in the post-authoritarian state have been taken
to the courts for resolution. Until the promulgation of the new Constitution in 2010, the
executive largely retained its hold on the judiciary, which therefore continued to be a
useful instrument for regime maintenance. Alternatively, it is plausible that the
circumstances in which judges were appointed may have made them willing
participants in the politics of regime maintenance. In this regard, the tendency of
successive political regimes to appoint judges from narrowly drawn ethnic and partisan
constituencies suggests that such judges were appointed solely to act as guardians of the
regime in power.
At the same time, the Moi regime appointed heads of the judiciary whose
independence, technical qualifications or moral suitability to serve were highly
contested by the legal fraternity and the public. For example, Chief Justice Alan
Hancox, an expatriate judge who replaced the controversial Cecil Miller, was heavily
criticized for eroding the independence of the Judiciary. Chief Justice Miller had, in
1981, confessed in a judgment that he interpreted and applied laws in close conformity
with the government policy.91 Of Chief Justice Hancox, it is claimed that during his
tenure the Government literally moved into the courts and ruled them. It was Chief
Justice Hancox who was at the helm when President Mois dictatorship was at its worst,
and his service in the Judiciary was part and parcel of that autocracy.92 Chief Justice
Hancox was replaced by another expatriate judge, Fred Apaloo. Since both judges were
expatriates, they were perceived by many to lack independence since they served at the
89. It should be noted that there can be politicians, however rare, who are committed to
dismantling the status quo. In Kenyas case, for example, it has been argued that a coalition for change
that emerged in the late 1990s contributed to legislative development. See, Joel D. Barkan & Fred
Matiangi, Kenyas Tortuous Path to Successful Legislative Development, in LEGISLATIVE POWER IN
EMERGING AFRICAN DEMOCRACIES 33 (2009), at 41.
90. H.W.O. Okoth-Ogendo, Constitutions Without Constitutionalism: Reflections on an African
Political Paradox, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY
WORLD (1993).
91. MWANGI, supra note 70, at 107.
92. Id., at 114.
pleasure of the President.

But public confidence in the judiciary as an impartial forum for dispute
resolution was not necessarily enhanced by the subsequent appointment of Kenyan
citizens to head the institution. Arguably, the circumstances of their appointments
predisposed such individuals to serving the executive faithfully. A respected
commentator on law and politics has thus suggested that one of the methods used by
President Moi in earning the loyalty of public officers was to promote beggars into
kings; that he often picked a man from the gutters and placed him in an influential
position where he would sacrifice his first son to retain the position.93
In addition, while explicit evidence of executive interference with judges or the
judiciary has been rare, many of the decisions and actions of judges and the judiciary
make much sense when they are examined in the context of the politics of the day. Let
us now juxtapose some key decisions and actions of judges and the judiciary with key
events in Kenyas political cauldron since the advent of multi-party politics.
A. The Judiciarys Reaction to Executive Control of the Post-Authoritarian Polity
1. The Context.As noted above, the Moi regime took a number of measures
to deny the opposition parties and civil society any meaningful political space upon the
re-introduction of multi-party democracy in 1991. Many of the political rallies were
banned, and opposition politicians and their supporters who defied such bans were dealt
with ruthlessly by the security forces and often incarcerated, a number of them
prosecuted on charges of sedition. Journalists and other media actors critical of the
regime were also punished. The government also prevented the registration of the
University Academic Staff Union (UASU), which was perceived as a threat given that
the academy had historically been critical of the Moi regime as we show below. The
regime also adeptly manipulated the electoral process to retain political power.
In this volatile political environment, the judiciary made a number of decisions
that were perceived as reinforcing the status quo. For example, the period was defined
by a restrictive judicial approach to the interpretation of the human rights provisions of
the constitution, an approach that suited to a tee the schemes of the Moi regime to keep
all sources of opposition on a short leash.94 According to Human Rights Watch, for
example, charges such as sedition and contempt of court [were] regularly used to
harass critics, and the courts [were] reluctant to oppose the government by standing up
93. Id., at 108.

94. See, e.g., Makau wa Mutua, Human Rights and State Despotism in Kenya: Institutional
Problems, 41 AFRICA TODAY 50 (1994).
for individual rights.95 At the same time, the period was characterized by significant
instances of executive demonstration of power when confronted by independent judges.
For example, it is alleged that the Head of the Public Service and Secretary to the
Cabinet interfered directly in the work of such judges, who were punished by being
transferred to less desirable stations and having their contracts terminated or not
renewed.96 This period represented a continuation of the policies of repression that had
been perfected by the time the authoritarian state was coming to an end.97
2. Registration of Societies.The case of the University Academic Staff Union

(UASU) is a useful illustration of the continuation of the policies of repression, and
public perceptions of judicial complicity therein. It should be noted at the outset that
a similar union had been registered in the late 1970s, but was subsequently banned by
the Moi government following the attempted coup of 1982.98 Alongside organizations
such as the Law Society of Kenya, members of the academic community had for all
intents and purposes served as an opposition party and had called for an end to the
repressive policies of the Moi regime. President Moi was thus hostile to these groups
and vehemently opposed the registration of UASU.99
In October 1992 lecturers in the four public universities applied to the Registrar
of Trade Unions for the registration of UASU. On failing to get any response from The
Registrar, they began a strike in November 1993 in protest at the registrars delay in
making a decision that usually takes no more than six months.100 The Registrar
responded by rejecting UASUs application.101 Thereafter, the vice-chancellors of the
four universities, all appointees of President Moi, declared that the striking lecturers
were in breach of their contracts of employment and dismissed some twenty-three
lecturers for failing to conduct classes.102
The dismissed lecturers then went to High Court in Nairobi, seeking to have
their dismissal set aside.103 The court declined prompting an appeal to the Court of
95. HUMAN RIGHTS WATCH, supra note 80, at 20.

96. See, e.g., Makau Mutua, Justice Under Seige: The Rule of Law and Judicial Subservience
in Kenya, 23 HUM. RTS Q. 96 (2001), at 110-111.
97. See, e.g., Korwa G. Adar & Isaac M. Munyae, Human Rights Abuse in Kenya under Daniel
Arap Moi 1978-2001, 5 Afr. Stud. Q. 1 (2001) [online] URL: http://web.africa.ufl.edu/asq/v5/v5i1a1.htm.
98. See, e.g., Press Release The Crisis of our Universities, DAILY NATION, January 7, 1994.
99. See, e.g., Moi Rules Out Dons Union, DAILY NATION, January 1, 1994.
100. HUMAN RIGHTS WATCH, supra note 80, at 28.
101. Id.
102. Id.
103. Nairobi High Court Civil Application No. 20 of 1994.
Appeal. Pending this appeal, the lecturers applied for an order from the High Court for
them to be allowed to stay in university housing until the determination of their appeal.
In making this application, the lecturers relied on the Court of Appeals decision in the
earlier case of Nyamodi Ochieng Nyamogo v. Kenya Posts and Telecommunications
(KPTC),104 which was authority for the proposition that an employee in a legal dispute
with the employer had a right to remain in housing provided by the employer until the
final determination of the dispute. The High court declined to give such an order,
whereupon they appealed to the Court of Appeal.
Once the Court of Appeal was seized of the matter, Chief Justice Apaloo took
the unusual and unprecedented step of convening a bench of five judges to hear the
lecturers application.105 It is not entirely clear why the Chief Justice took this step,
instead of leaving the matter to the usual bench of three judges. The decision in
Nyamogo had been rendered by a bench of three judges, and, in keeping with the
common law doctrine of precedent, it could only be overruled by a bench of five
judges.106 In these circumstances, it is arguable that the Chief Justice was intent on
getting Nyamogo overturned. It thus came as no surprise that in its decision, the bench
of five judges overruled Nyamogo, and allowed the universities to evict the striking
lecturers. As many people saw it, this decision of the Court of Appeal was not arrived
at independently, as it came in the midst of public declarations by President Moi that
UASU would not be registered.107 Indeed, one journalist described the decision as
reeking of state interference.108 The Court of Appeal reacted to this criticism by
instituting contempt of court proceedings against the said journalists, an interesting case
which we discuss below.
3. Electoral Disputes.The general elections of 1992 and 1997 had both been
marred by numerous irregularities. For example, the freedom of assembly of the
political opposition was severely restricted, and militias in areas dominated by KANU
104. [2005] eKLR.

105. HUMAN RIGHTS WATCH, supra note 80, at 29 (observing that while this step was within
the discretionary powers of the Chief Justice, it was highly unusual and [had] never been taken before).
106. Id. In addition, it is asserted that a five-judge bench should only be convened if one or both
of the litigating parties petition the court for the two additional judges citing reasons why they believe a
precedent should be overturned. No such request was made by either party in the UASU case.
107. Id.
108. David Makali, Court of Appeal Ruling on Dons Reeked of State Interference, PEOPLE,
March 6-12, 1994.
attacked members of ethnic groups associated with the opposition.109 In addition, the
playing field was lopsided in favour of the incumbent regimethe constitution left the
appointment of the members of the Electoral Commission of Kenya to the sole
discretion of the President, and KANU liberally used state resources in its political
campaigns.110
In an effort to level the playing field, the opposition parties struck a political
deal with the KANU regime in 1997, under the auspices of the Inter-Parties
Parliamentary Group (IPPG). Had it been implemented fully, the IPPG deal would
have leveled the playing field as it proposed far-ranging constitutional, legal and
administrative reforms.111 But President Moi had other plans; before crucial aspects of
this agreement could be enacted into law, he dissolved the legislature.112 The general
elections of 1997 were therefore held under rules that continued to give KANU an
undue advantage over the political opposition.
According to various sources, these elections were marred by numerous
irregularities.113 For instance, it was reported that in eight constituencies the
irregularities in the poll and count were so great as to invalidate the elections in these
particular constituencies and, consequently, the legitimacy of the overall KANU
majority in the National Assembly.114 In addition, a joint observation team of aid
donors indicated that the opposition should have won more seats in the National
Assembly than KANU.115 Mwai Kibaki went to court to challenge the validity of the
election of Daniel arap Moi as President.116
It is also worth noting that prior to the general elections of 1997 the National
Assembly and Presidential Elections Act,117 which, among other things, governed the
109. See, e.g., Stephen Brown, Authoritarian Leaders and Multiparty Elections in Africa: How
Foreigners Help to Keep Kenyas Daniel arap Moi in Power, 22 THIRD WORLD Q. 725 (2001).
110. See, e.g., Ndegwa, supra note 85.
111. For a discussion of the IPPG deal, see id.
112. Brown, supra note 109, at 733.
113. Id., at 734.
114. Election Observation Centre, Kenya General Elections 1997: Final Report for Donors
Democratic Development Group, Nairobi, January 1998, at i.
115. Donors Democratic Development Group, Final Report: Kenya General Elections 1997,
January 1998.
116. Kibaki v. Moi & 2 ors (No.2) (2008) 2 KLR 308. Prior to the filing of this suit, several
opposition leaders (including Mwai Kibaki of the Democratic Party of Kenya, Raila Odinga of the National
Democratic Party and Michael Wamalwa Kijana of FORD-Kenya) had demanded a re-run of the
presidential election. While Odinga and Wamalwa chose to withdraw their objections and work with
KANU, Kibaki opted to have his day in court. See Brown, supra note 109, at 734.
117. Cap 7, Laws of Kenya.
service of election petitions, had been amended by Act No. 10 of 1997. Prior to the
amendments, section 20(1)(a) of the Act provided that a petition to question the
validity of an election, shall be presented within twenty eight days after the date of
publication of the result of the election in the Gazette. After the amendments, this
provision now required that such a petition had to be presented and served within
twenty eight days after the date of publication of the result of the election in the
Gazette.118
In his defence, Moi averred that because he had not been served personally with
the petition as required by law, the petition should consequently be struck out for bad
service. The High Court obliged, and accordingly struck out the petition. The Court of
Appeal affirmed this decision in Kibaki v. Moi (2008), reasoning that because section
20(1)(a) had not prescribed any mode of service, the courts must go for the best form
of service which is personal service.119 Further, the court opined that since the
legislature has decreed in section 20(1)(a) that service of election petitions must be
personal and whatever problems may arise from that, the court must enforce the law
until the legislature should itself be minded to change it.120 This decision of the Court
of Appeal was criticized for claiming that the amended section of the National
Assembly and Presidential Elections Act mandated personal service, while its text only
provides that the election petition must be presented and served without stipulating
how such presentation or service is to be effected. Some commentators therefore
accused the Court of Appeal of making a new law in this case.121
Given that the president is surrounded by a massive ring of security the
practical effect of this ruling of the Court of Appeal was to make it virtually impossible
for the petitioner to serve President Moi with the petition. Indeed, the general
consequence of this ruling has been that intended respondents have evaded service of
petitions of service upon them and engaged petitioners in hide-and-seek games.122 It
should therefore come as no surprise that the technicalities of service brought the
petition to a premature halt and its merits were not presented to the courts for
consideration. The ruling thus served to protect the Moi regime, in so far as it
forestalled any challenges to the validity of its election. When one examines the
decision of the Court of Appeal in the context of the volatile political environment in
118. Emphasis added.

119. Kibaki v. Moi (No. 3) (2008) 2 KLR 351, at 376.
120. Id., at 377-378.
121. See, e.g., MICHAEL Z. ONGOYA & WASIA S. MASITSA, THE LAW OF POLITICS OR THE
POLITICS OF THE LAW? AN EVALUATION OF THE MWAI V. MOI RULE AS TO PERSONAL SERVICE OF
ELECTION PETITIONS IN KENYA (2005).
122. Id., at 22.
which the 1997 general elections took place, it becomes easy to understand why the
judiciary would be accused of favouring the incumbent regime in political disputes.
B. Commissions of Inquiry, Courts of Law and the Politics of Grand Corruption
The Judiciary has also played a controversial role in the war against grand corruption.
The decision of the High Court in Republic v. Judicial Commission of Inquiry into the
Goldenberg Affair ex parte George Saitoti123 illustrates why the instrumental
interpretation of the law may undermine the authority and legitimacy of the judiciary
in the perception of the citizenry.124 The Goldenberg affair revolved around the
activities of a company called Goldenberg International Limited (GIL), which from
about 1990 had fraudulently obtained some six billion shillings from the Central Bank
of Kenya by manipulating export compensation laws and regulations by making it
appear like it had exported gold, while in fact no gold was exported. Professor George
Saitoti, the applicant in this case, was the Minister for Finance when the Government
approved GILs creative scheme.
In 2003, the National Rainbow Coalition (NARC) government set up a
commission to inquire into the Goldenberg affair. When this commission submitted its
report in 2005, it found that Professor Saitoti knowingly and illegally allowed GIL an
enhanced rate of export compensation contrary to the provisions of the Local
Manufacturers (Export Compensation) Act. In any case, it was clearly an abuse of his
powers as Minister, not to have subjected this application to technical evaluation as he
did others.125 Professor Saitoti disagreed with the findings of this commission and
went to court, seeking judicial review orders to quash the findings, remarks and
decisions of the Bosire Commission and to prohibit the Attorney-General from
bringing criminal charges against him. The Court obliged, reasoning that: (1) the
Bosire Commission erred by purporting to review a decision of the legislature, which
it did not have the power to question, and which in any case had concluded that Saitoti
had acted according to the law; (2) Professor Saitoti could not be accorded a fair trial
123. [2006] eKLR (hereinafter Saitoti).

124. A similar approach was taken in the earlier case of Republic v. Attorney General and Chief
Magistrates Court ex parte Kipngeno arap Ngeny, Nairobi Misc. Civil Application No. 406 of 2001.
Here, the High Court decided that the prosecution of Kipngeno arap Ngeny on corruption charges was
oppressive and did not accord with his constitutional rights because there was a lengthy and unexplained
nine-year delay between the time of alleged commission of the offences charged and the initiation of the
prosecution by the Attorney General in 2001.
125. REPUBLIC OF KENYA, REPORT OF THE JUDICIAL COMMISSION OF INQUIRY INTO THE
GOLDENBERG AFFAIR (2005), at 547 (hereinafter GOLDENBERG REPORT).
because of prejudicial comments made by legislators and other public officers; and (3)
since many years had passed without any criminal charges being brought against him,
his constitutional right to a fair trial within a reasonable time would now be violated.126
However, the reasoning of the court can be faulted on four grounds. First, the
idea that a legislative inquiry should prevent a judicial inquiry seems absurd. Second,
the absence of speedy investigations and prosecutions in the Goldenberg affair could
be attributed to deliberate action or inaction by the Government.127 Indeed, it can be
argued that in failing to prosecute the perpetrators of the Goldenberg scam, the
Government violated the right of the citizens of Kenya to a speedy and fair trial and
more than fifteen years after the scam was hatched and executed, the citizens are yet to
see justice being done.
Third, the decision sets a bad precedent since it renders the Report of the Bosire
Commission worthless and opens the door for any person adversely mentioned in the
report of a commission of inquiry to rush to court,128 and where he/she obtains
favourable orders, no courts of law will try them for any offence they may have
committed.129 This is precisely what happened in Kotut v. Bosire & 2 Ors.130 Finally,
the Saitoti and Kotut decisions reinforce public perceptions that the courts make
political rather than legal decisions so as to protect the interests of the rich and
powerful.
C. Reactions of the Judiciary to Public Criticism
The judiciary has often played a controversial role in regulating political disputes in the
post-authoritarian state and has thus been criticized for being corrupt or taking partisan
positions and meting out unduly harsh and unjustified sentences to suppress public
debate and protect powerful actors.131 Two cases decided in the 1990s provide a useful
126. Saitoti, supra note 123, at 36.

127. GOLDENBERG REPORT, supra note 125, 757-784.
128. See, e.g., the case of Wilfred Karuga Koinange v. Commission of Inquiry into Goldenberg,
Misc. App. 372 of 2006. It should be noted that in this case the court declined to issue the orders of
certiorari and prohibition, and reasoned in its ruling that the public interest demanded that the issues raised
by the applicant should be determined in a proper trial, and should not be stayed by the court merely
because they relate to issues raised 4, 8, 12 or more years ago. See id., at 14.
129. See, e.g., Jillo Kadida, Is this the End of Goldenberg Cases? DAILY NATION, November
21, 2008; Judy Ogutu, Court Also Frees Kotut, STANDARD, November 21, 2008.
130. Kotut v. Bosire & 2 Ors [2008] eKLR.
131. The prominent defamation cases include George Oraro v. Wangethi Mwangi and Nation
Newspapers, High Court at Nairobi, Civil Case No. 1203 of 1993, Evans Gicheru v. Andrew Morton &
Another, Civil Case No. 214 of 1999, Kipyator N. K. Biwott v. Clays Limited & 3 Others, Nairobi HCCC
illustration of the judiciarys levels of tolerance to criticism.

The first case is that of Republic v. David Makali & 3 Ors132 (hereafter Makali),
which arose out of public criticism of the decision of the Court of Appeal in the UASU
case discussed above (also known as the Dons Case). In its ruling, the court ordered
that the lecturers could remain in university housing until 31st March, 1994 when they
must be evicted if they failed to reach an accommodation with the university over their
dispute. It is this ruling which invited the criticism that was the subject of contempt
of court proceedings in Makali.
In an article in People magazine entitled Court of Appeal Ruling on Dons
Case Reeked of State Interference, the 1st respondent had criticized the ruling,
claiming that it was a sign of indecision and dishonesty by the court.133 The article
quoted the 4th respondent, a lawyer, as saying that the courts ruling amounted to
judicial lynching and blackmail tailored to meet the political expedience of the
Executive.134 These comments elicited a furious reaction from the judiciary, and the
Attorney General commenced contempt of court proceedings in the Court of Appeal
against the respondents, who contended that the article was fair comment on a matter
of general public interest. However, the court held that it was contemptuous, and
imposed very stiff penalties on the respondents.
In Republic v. Gachoka and Another135 (hereafter Gachoka), concerning
allegations of corruption in the judiciary, the Attorney General had instituted contempt
of court proceedings against the respondents for publishing articles in the Post on
Sunday alleging that they had made comments on an on-going case thereby violating
the sub judice rule, and attacked the character of the Judiciary and the Chief Justice.
One of the articles, entitled Chesoni Implicated in an Orgy of Judicial Anarchy and a
Kshs 30M Bribe, had claimed that the Chief Justice had received a bribe to influence
the outcome of a decision in a suit relating to the Goldenberg scandal.
In response to this article, the offended Chief Justice had instructed a firm of
advocates to sue the 1st respondent, Mr. Tony Gachoka. This prompted the 1st
respondent to write the second article, by the title Judiciary in Panic as Chesoni Falls
Out of Favour Sues Tony Gachoka. In this article, he wrote that If in the case of
No. 1067 of 1999 consolidated with Kipyator N.K. Biwott v. Dr. Ian West and Another, Nairobi HCCC No.
1068 of 1999, Francis Lotodo v. Star Publisher & Another, High Court of Kenya at Nairobi, Civil Case
No. 883 of 1998). In their review of these cases, the authors of Makali (2003: 188) accuse the judges of
inconsistency and lack of ideological commitment to freedom of expression.
132. R. v. Makali & 3 Ors, Court of Appeal Criminal Application Number 4 & 5 of 1994.
133. Id., at 32, per Omolo, JA.
134. Id., at 14.
135. R. v. Gachoka & Anor, Court of Appeal Criminal Application No. Nai. 4 of 1999.
Kamlesh Pattni you [the Chief Justice] hand-pick Magistrates and Judges to decide
cases in his favour are you not going to also hand-pick a Judge to decide this impending
case in your favour? The court held that Mr. Gachoka was in contempt of court
because ordinary persons reading the articles would conclude that this Judiciary
including the highest court in the land is not only corrupt but is weak-kneed enough to
lend itself to manipulations by the Honourable Chief Justice.136
For courts to be respected, their processes and decisions should command
respect and where courts are perceived to take unprecedented steps to change their
precedents as in the Dons case: judge in their cause as in the Makali case; or fail to
guarantee a fair trial as in the Gachoka case, they lose public respect. The Gachoka
case must be seen in the context of the contemporaneous Committee on the
Administration of Justice (also known as the Kwach Committee, after its chair) to
inquire into judicial rectitude, moral uprightness, righteousness or correctness of
judicial officers in the discharge of their judicial functions.
Appointed in 1998 by the Chief Justice, the Committee established the
existence of practices that made the judiciary and judicial officers vulnerable to
corruption such as lack of proper vetting in the appointment process, lack of
transparency in the discharge of the judicial function, and lack of a transparent and
merit-based judicial appointment system.137 The Kwach Committee reported cases of
actual payment of money to judges and magistrates to influence their decisions.138
While Mr. Gachokas words were arguably reckless and scornful, he was right to
question the sincerity of the Kwach Committee process, which he perceived as a
cosmetic attempt by the judiciary to police itself in response to public outcry over
judicial corruption, and whose report was in any case not made public.139
In these circumstances, the judges claim that they were punishing these
respondents for contempt to protect the public from losing confidence in the judiciary
is untenable. Shah, JA in the Gachoka case, observed that the purpose of the power of
the court to punish for contempt is to see to it that the ordinary people of this country
look up to judges as men and women of integrity and honesty who could therefore be
trusted to judge the disputes before them judicially, judiciously and impartially.140 The
circumstances prevailing at the time however, including allegations of judicial
corruption, necessitating the Kwach investigation, hardly support the citizenrys
136. Id., at 30, per Shah, JA.

137. See, REPORT OF THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE (1998).
138. Id., at 10.
139. Id., at 19.
140. Id., at 31.
perception of judges as men and women espousing high ethical and professional
standards. It was therefore not enough for the courts to take the view that the power
to punish for contempt is the only weapon at the disposal of the court to put the matters
right.141
As a body not elected by citizens, the judiciary can only play its role
legitimately if it is perceived to be independent and impartial. The Bangalore Principles
of Judicial Conduct provide that A judge shall not only be free from inappropriate
connections with, and influence by, the executive and legislative branches of
government but must also appear to a reasonable observer to be free therefrom.142
Thus where its independence or impartiality is questioned, it should instead put its
house in order so that the public would have no justifiable cause to doubt its integrity
and professionalism and rethink its policy preference for internal accountability
mechanisms rather than quickly resort to its power to punish for contempt, however
tempting.143
IV. JUDICIAL INDEPENDENCE AND ACCOUNTABILITY IN THE

CONSTITUTION OF 2010
This article has argued that it is the absence of institutional mechanisms to regulate
judicial power that largely explains the subservience of Kenyas judiciary to the dictates
of the executive. As we have seen, the powers of the President and the Chief Justice
to appoint and dismiss judicial officers, and the administrative powers of the Chief
Justice, are not regulated and have typically been exercised in ways that, respectively,
undermine the institutional autonomy and authority of the judiciary, and the decisional
independence of judicial officers.
The provisions of the Constitution of Kenya 2010 (hereinafter Constitution of
2010) which seek to enhance judicial independence and accountability can therefore
contribute to the creation of a judiciary that can adjudicate political contests with the
blessings of the citizenry. The Constitution of 2010 seeks to enhance judicial
independence and accountability in five significant respects. First, it disperses judicial
authority and grants the judiciary financial autonomy.
141. Id., per Shah, JA (emphasis added).

142. See, Bangalore Principles of Judicial Conduct (2002), 1.3 (emphasis added).
143. See, Justice J.E. Gicheru, Independence of the Judiciary: Accountability and Contempt of
Court, 1 KENYA L. REV. 7 (2007) (stating that In order to guard against interference with our judicial
independence, we in the Kenya Judiciary have preferred internal accountability mechanisms rather than
the external institutions).
Although the Chief Justice is still the head of the Judiciary, the new
Constitution establishes three superior (in addition to subordinate) courts. These are the
Supreme Court, the Court of Appeal and the High Court.144 It also establishes the
offices of Deputy Chief Justice (as the Deputy Head of the Judiciary) and Chief
Registrar of the Judiciary, as the Judiciarys chief administrator and accounting officer
(Article 161), charged to administer the Judiciary Fund established by Article 173 to
enhance the financial autonomy of the Judiciary. Further, the new Constitution
provides that the Chief Justice will preside over the Supreme Court, while the Court of
Appeal and the High Court will each be presided over by a judge elected by the judges
of these courts from among themselves.145 These provisions can enhance democratic
governance within the judiciary.
Second, Article 166 of the Constitution of 2010 provides that the President can
only appoint the Chief Justice and judges of the superior courts subject to the
recommendations of the Judicial Service Commission (JSC) and the approval of the
National Assembly. Other judicial officers are to be appointed by the JSC.
Third, the membership of the JSC has been expanded. Article 171 empowers
the president to appoint one man and one woman, who are not lawyers, to represent
the public in the commission thus including ordinary members of the public. The
subordinate courts and practicing lawyers are also represented in the commission
making the new JSC a more legitimate body promising enhanced accountability of the
judiciary to the public.
Fourth, Article 168 of this Constitution circumscribes the power to dismiss
judges. Unlike before, the process of removal of the Chief Justice and judges will now
be initiated by the JSC acting on its own motion, or on the petition of any person, and
only after hearing the affected judge and being satisfied that there is a ground for
removal will they send a petition to the President to establish a tribunal to inquire into
the matter. Although the affected judge has a right to appeal to the courts, the President
is empowered to act in accordance with the recommendations of the tribunal. This
introduces due process and certainty in the exercise of the power to dismiss judges, and
can enhance security of tenure and independence of judges.
Last but not least, this Constitution provides a framework for the vetting of
judicial officers. On the one hand, it provides that the current Chief Justice shall vacate
office within six months after it takes effect.146 On the other hand it requires the
legislature (Parliament) to enact a law within one year after it takes effect, which will
144. KENYA CONST., supra note 64, arts 163-165.

145. Id., art. 164.
146. Id., Clause 24, Sixth Schedule.
establish mechanisms and procedures for vetting the suitability of all judges and
magistrates to continue to serve. The idea of vetting has been quite popular with the
public, who hold that many judicial officers are unfit to hold office for corruption,
incompetence and lack of independence.
We hope that these transformative provisions of the Constitution will be
implemented faithfully while noting it will be implemented in a fairly polarized
political environment, where the positions of the antagonists will be defined by a desire
to either capture or retain power. In the case of the judiciary in particular, there will be
little or no change unless the right people, who meet the new constitutional
requirements on leadership and integrity, are appointed to judicial office.
Unfortunately, the Constitution requires the President to nominate office-holders (such
as the Attorney General, the Director of Public Prosecutions, Cabinet Secretaries,
Principal Secretaries, the Chief Justice and other senior judges) for approval by
Parliament without establishing criteria for determining the suitability of individuals for
these offices.
Further, the new Constitution assumes that members of Parliament will actually
play their role and vet nominees for public office, including judicial officers fairly. The
absence of nomination criteria encourages horse-trading among the key political parties,
who may agree not to vet one anothers candidates for office when their suitability is
debated in the legislature. This would greatly undermine the objective of the
Constitution of giving Kenyans an accountable and legitimate judiciary. Pre-empting
the execution of such pacts calls for a very assertive JSC. In addition, there is a need
for a law establishing suitable nomination and appointment criteria for judicial office
if this Constitution, especially the chapter on leadership and integrity, is to be realized.
The JSC must establish procedures that facilitate transparency and accountability in its
decision-making to ensure that the right judicial officers are appointed and retained.
The Law and Development Review
Volume 3, Number 1 2010 Article 6
A Delicate Balance: Building Complementary

Customary and State Legal Systems
Leigh T. Toomey, Queensland University of Technology
Recommended Citation:
Toomey, Leigh T. (2010) "A Delicate Balance: Building Complementary Customary and State
Legal Systems," The Law and Development Review: Vol. 3: No. 1, Article 6.
DOI: 10.2202/1943-3867.1084
2010 The Law and Development Review. All rights reserved. No part of this publication may
be reproduced, stored in a retrieval system, or transmitted, in any form or by any means,
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A Delicate Balance: Building Complementary
Customary and State Legal Systems
Leigh T. Toomey
Abstract
Development assistance programs in the law and justice sector have traditionally focused on
reforming state legal institutions to the exclusion of customary legal systems. This is often because
of host country pressure to achieve quick results, limited familiarity of foreign lawyers with the
concepts of customary law, and donor reluctance to support customs that substantively or
procedurally violate human rights norms. Yet, rule of law practitioners deployed to developing
and post-conflict countries are increasingly confronted with the reality that customary legal
systems are the preferred and, for the foreseeable future, the only viable means of dispute
resolution available to the vast majority of people. Given the empirical evidence on the high level
of recourse to customary law, this paper argues that customary legal systems are integral to
development, and that both customary and state legal systems have a role to play in a functional
justice sector. However, there is little systematic guidance for practitioners in the field, many of
whom have had no previous exposure to customary law, on exactly what options are available to
engage both systems and the issues that different types of interventions raise. This paper sets out a
framework of policy options for programs that seek to harness the respective strengths of
customary and state legal systems, giving examples of initiatives that have attempted to do this.
The paper concludes by proposing good practices for rule of law practitioners to follow in
supporting customary and state legal systems that co-exist in a manner which advances peace,
economic growth and sustainable development.
KEYWORDS: customary law, customary dispute resolution, law and justice sector, development
law
Author Notes: Leigh Toomey acted as the Criminal Justice Advisor to the United States
Department of State, Bureau of International Narcotics and Law Enforcement Affairs, Juba,
Southern Sudan (2008-9). In this role, she assisted in establishing the State Departments
Comprehensive Criminal Justice Sector Development Program. She has also worked on rule of
law missions in other parts of Africa, Asia and the Pacific, and the Caucasus. She holds an LL.M.
from Yale Law School and a B.A., LL.B. (Hons. I) from the University of Queensland, Brisbane,
Australia. She also holds an appointment as Sessional Academic at the Queensland University of
Technology. The views expressed herein are those of the author. Special thanks to Professor Reid
Mortensen for comments on this paper.

Toomey: Building Complementary Customary and State Legal Systems
I. INTRODUCTION
Over the last decade, the focus of development assistance has been on achieving
sustainable results. The law and justice sector is certainly no exception, as rule of
law practitioners are increasingly called upon to design programs that produce
outputs which recipients of aid can and will continue to use when donor funding
ceases. Experience suggests that this can be done by using existing institutions to
bring about reform, as their local knowledge, standing in the community, and
ongoing presence at the end of a program tends to have a longer-term impact.
One area of rule of law practice which readily lends itself to this approach is
the work which practitioners are undertaking with customary legal systems. These
systems dispense justice at the community level, usually in informal proceedings
led by community leaders who base their decisions on unwritten customary law.
Customary legal systems often exist outside the state legal architecture and were
once considered to be beyond the purview of mainstream rule of law programs
which focused exclusively on state institutions. However, anthropological and
other studies have shown that customary dispute resolution is the primary means
of accessing justice in many developing countries because it offers the type of
justice preferred by most people. It is also often the only option available when
limited resources, neglect or conflict has restricted the operation of state courts.
Thanks to these studies, there is now a greater awareness of customary law
and growing recognition of the potential role of customary legal systems in
reducing delays and caseloads in overburdened state courts and in maintaining
peace through timely and effective dispute resolution. Nevertheless, this potential
will not be fully reached until rule of law practitioners find ways to ensure that
customary and state legal systems work together, harnessing the respective
advantages of each system.
Despite modest progress, this area is still very much in its infancy. There is
little reliable data on the content of customary laws and how customary legal
systems actually operate, and only a few pilot projects to provide models of
successful linkages between customary societies and the State. This paper seeks to
shed light on these difficult issues by reviewing recent experience in rule of law
programming involving customary legal systems. Although customary legal
systems vary widely from country to country, Part II of this paper considers some
of the typical features of customary dispute resolution, as well as its potential
pitfalls. Part III explores five different policy options which have been employed
with varying degrees of success in developing and post-conflict societies to build
complementary customary and state legal systems. Part IV proposes good
practices to assist rule of law practitioners to work more effectively in legally
plural societies. Part V concludes with final remarks.
157

The Law and Development Review, Vol. 3 [2010], Iss. 1, Art. 6
II. CUSTOMARY LEGAL SYSTEMS
A. Acceptance of Legal Pluralism in Rule of Law Missions
Contemporary rule of law practice in headquarters and field-based missions is

now firmly based, albeit often unconsciously, on a legal philosophy known as
legal pluralism. Simply put, legal pluralism acknowledges the existence of
multiple legal systems within one geographic area.1 Plural legal systems are
particularly prevalent in former colonies of European powers, where the law
introduced by the colonizing power exists alongside its indigenous counterpart.
Legal pluralism is thus a feature of both developed and developing countries,2
though the indigenous legal system is often greatly overshadowed by the state
legal system in developed countries where indigenous peoples are in the minority.
According to this philosophy, rule of law interventions that engage the
customary legal system3 as an integral part of justice sector development are
appropriate, and indeed necessary, to ensure that all legal systems in a country are
1
See John Griffiths, What is Legal Pluralism?, 24 Journal of Legal Pluralism and Unofficial Law
(1986), 1 who defines legal pluralism as the presence in a social field of more than one legal
order. Griffiths analysis is one of the seminal works in its field, though legal theorists have not
been able to agree on what is law and what constitutes a legal system. See generally Brian Z.
Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney Law
Review (2008), 375-411.
2
In fact, in all countries the state legal order is itself plural. For example, when states become
party to international treaties, they establish a parallel legal system with norms, institutions, and
dispute resolution mechanisms that may conflict with the state legal system. See Tamanaha
(2008), supra note 1, pp.386-390. In addition, countries that have established a federal structure of
government recognize the existence of different laws and institutions in each of their regions or
states. See International Council on Human Rights Policy (ICHRP), When Legal Worlds Overlap:
Human Rights, State and Non-State Law (Versoix: International Council on Human Rights Policy,
2009), p.3. Non-state legal orders can also be plural when non-state religious legal systems co-
exist alongside other customary legal systems, see Tamanaha (2008), supra note 1, p.398, or when
there are multiple customary legal systems, see Aleu Akechak Jok, Robert A. Leitch and Carrie
Vanderwint, A Study of Customary Law in Contemporary Southern Sudan (World Vision
International and the South Sudan Secretariat of Legal and Constitutional Affairs, 2004), p.29,
available at:
<http://www.gurtong.org/ResourceCenter/laws/Customary%20Law%20Overview%20in%20
South%20Sudan%20March%202004_compressed.doc>, accessed 1 December 2010. This paper
focuses mainly on customary legal systems in developing or post-conflict countries.
3
In this paper, customary legal systems are taken to mean justice systems operating at the local or
community level that have not been set up by the State and derive their legitimacy from the values
of the community, see International Development Law Organization (IDLO), Towards Customary
Legal Empowerment - Inception Paper, (Rome: International Development Law Organization,
2010), p.1 and note 1. Customary law is taken to mean the rules made by such systems that the
community perceives as binding, as opposed to codified or judge-made customary law. See also
Part III of this paper, infra.
158

the subject of reform. Legal pluralism can be contrasted with alternative legal
philosophies like legal positivism, which views the law as the exclusive product
of state institutions, such as the judiciary and the legislature, and is deeply
resistant to the recognition of any unwritten, values-based conception of
customary law.4
While legal positivism may still command some support in developed legal
systems, initiatives that seek to understand and improve upon customary law are
now commonplace in any comprehensive rule of law assistance package in
developing and post-conflict countries (or, for that matter, countries still in
transition from conflict). It is no longer plausible to deny the relevance and
credibility of customary legal systems, given the overwhelming evidence that the
majority of people in developing and post-conflict societies prefer to, and actually
do, take their legal disputes to customary fora. For example, the Ministry of
Justice in Afghanistan has recently estimated that 90% of Afghans rely on
customary law to resolve their disputes.5 Meanwhile, in Sierra Leone,
approximately 85% of the population falls under the jurisdiction of customary
law.6 Customary tenure also covers 75% of land in most African countries and
affects 90% of land transactions in countries such as Mozambique and Ghana.7 In
Bangladesh, an estimated 60-70% of local disputes are handled by customary
mechanisms,8 while the figure is slightly higher in Haiti, where customary legal
4
John Dawson, The Resistance of the New Zealand Legal System to Recognition of Maori
Customary Law, 12 Journal of South Pacific Law 1 (2008), 61.
5
Government of the Islamic Republic of Afghanistan, Justice for All: A Comprehensive Needs
Analysis for Justice in Afghanistan (Kabul: Ministry of Justice Afghanistan, 2005), p.12. See also
United Nations Development Programme (UNDP), Bridging Modernity and Tradition: Rule of
Law and the Search for Justice, Afghanistan Human Development Report (Kabul: Center for
Policy and Human Development, Kabul University, 2007), p.9 which estimates that traditional
decision-making accounts for more than 80% of settled cases.
6
Leila Chirayath, Caroline Sage and Michael Woolcock, Customary Law and Policy Reform:
Engaging with the Plurality of Justice Systems (2005), p.3, available at:
<http://siteresources.worldbank.org/INTWDR2006/Resources/477383-1118673432908/Customary_
Law_and_Policy_Reform.pdf>, accessed 1 December 2010. But see Deborah H. Isser, Stephen C.
Lubkemann and Saah NTow, Looking for Justice: Liberian Experiences with and Perceptions of
Local Justice Options, Peaceworks No. 63 (Washington DC: United States Institute of Peace,
2009), p.4 which refers to a survey conducted by the Centre for the Study of African Economies at
Oxford University which found that in neighboring Liberia only 38% of civil cases and 45% of
criminal cases were taken to customary fora, while many cases are not taken to any forum at all.
7
Chirayath (2005), supra note 6, p.3, citing C. Augustinus, Comparative Analysis of Land
Administrations Systems: African Review with Special Reference to Mozambique, Uganda,
Namibia, Ghana, South Africa (Washington DC: World Bank, 2003).
8
UNDP, Programming for Justice: Access for All, A Practitioners Guide to a Human Rights-
Based Approach to Access to Justice (Thailand: UNDP, 2005), p.100. The UNDP also notes that
traditional justice is used 98% of the time in Papua New Guinea, see note 50.
159

norms heavily influence the decisions of justices of the peace who deal with more
than 80% of disputes in that country.9
B. Navigating the Complexity of Customary Legal Systems
One of the key questions that drives much of the literature on customary legal
systems is why those systems tend to enjoy such a high degree of legitimacy and
support among their constituents. The answer lies in identifying the features of
customary legal systems that are well-suited to developing or post-conflict
settings. However, this is anything but a simple endeavor. Customary law and its
application differs widely between countries and between communities within the
same country, so that it is not readily amenable to classification and is a fertile
ground for generalizations.10 Customary law also tends to be handed down by oral
tradition. With the exception of donor-funded ascertainment projects which aim to
facilitate community groups in documenting their own customs,11 the writings of
local scholars in customary law,12 and a handful of in-depth legal and
anthropological studies on local perceptions of justice, there is little reliable
information on the content of customary laws, how they actually work in practice,
how and why they change over time and, most importantly, whether their
diversity operates as a source of instability.13 Needless to say, the tradition of
emphasizing aspects of the customary legal system for their own purposes, which
was started by colonizing powers and continued today, by donors, state
institutions, and customary leaders alike, only adds to the confusion.
9
Jamal Benomar, Rule of Law Technical Assistance in Haiti: Lessons Learned, paper given at a
World Bank Conference (Saint Petersburg, 8-12 July 2001), p.11, available at:
<http://haiticci.undg.org/uploads/Lessons%20Learned%20Justice_2001.pdf>, accessed 1
December 2010.
10
See, for example, Brynna Connolly, Non-State Justice Systems and the State: Proposals for a
Recognition Typology, 38 Connecticut Law Review (2005-06), 245. Connolly notes the tendency
to conflate the variety of communities within a society, and to ignore that customary societies are
the complex result of superimposition and mixing of components by colonizing powers.
11
For example, Christina Jones-Pauly, Recommendations of the Workshop on Customary Law,
Juba, Southern Sudan, 13-15 November 2006: A Commentary (2006), p.8 (on file with the author).
See also Part III of this paper, infra, on the merits of ascertainment projects.
12
See, for example, John Wuol Makec, The Customary Law of the Dinka People of Sudan In
Comparison with Aspects of Western and Islamic Laws (London: Afro-World Publishing Co.,
1988) (referred to below as Makec, Customary Law of the Dinka People). See also John Wuol
Makec, Cases and Principles of Customary Law in Sudan (2007). Justice Makec is the President
of the Supreme Court of Southern Sudan and a member of the Dinka tribe.
13
Miranda Forsyth, A Bird that Flies with Two Wings: Kastom and State Justice Systems in
Vanuatu (Canberra: ANU E Press, 2009), p.19.
160

Not surprisingly, there is also no common means of describing indigenous

dispute resolution mechanisms around the world. Rule of law practitioners and
other development specialists refer to non-state, quasi-state, informal, traditional,
chthonic, collective, community, participatory, chiefly, tribal, parallel,
supplementary, restorative, popular, local, and folk law systems, to name a few.14
These terms are usually invoked in post-colonial contexts to distinguish between
native and transplanted norms. The term customary legal system is used in this
paper as a reminder that the institutions and norms that form part of these systems
have developed as customs over an extended period of time during which they
have proved to be an effective means of dispensing justice.
More seriously, one then has to grapple with the fact that, while the sharp
division of legal systems into either a customary or state grouping is superficially
attractive, it rarely reflects reality on the ground.15 State regulation of customary
law, as well as external rule of law interventions that encourage the incorporation
of customary concepts into statutory law, have resulted in the cross-fertilization of
ideas and blurred the distinction between both systems.16 In reality, each
customary society falls along a continuum, depending on its degree of contact
with the State.
Perhaps the most challenging aspect of understanding customary legal
systems, at least for Western-trained rule of law practitioners and particularly for
professionals who have built a career in law, law enforcement, or corrections for
some time before taking that expertise to the field, is that such understanding
requires a departure from the mindset that Western concepts of justice should be
the ultimate end of any legal system. This is all the more true in societies that
have already experienced the imposition of foreign values by colonizing powers
and are often extremely hostile to continued cultural imperialism.17 In order to
provide effective assistance that overcomes this legacy, rule of law practitioners
14
Ibid., p.29. Some commentators consider that this is not merely nomenclature and that terms
such as non-state may reflect a normative stance that state law is superior. See, for example,
Wilfred Schrf, Non-State Justice Systems in Southern Africa: How Should Governments
Respond? (2003), pp.2-4, available at: <http://www.gsdrc.org/docs/open/DS35.pdf>, accessed 1
December 2010. Schrf uses the example of the term non-white in racial labeling to demonstrate
his point. Communities also have their own names for their customary systems, such as the Adat
(Indonesia, East Timor); Kastom (Melanesia - Vanuatu, Solomon Islands); Salif (the Beja tribe,
North-Eastern Sudan); Urf (Islamic countries in Northern Africa and the Middle East), and Xeer
(Somalia).
15
Ewa Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute (Oslo, UNDP,
2006), p.9.
16
ICHRP (2009), supra note 2, at vi. See also Part III of this paper, infra, for examples of how this
has happened.
17
David Pimentel, Rule of Law Reform without Cultural Imperialism? Reinforcing Customary
Justice through Collateral Review in South Sudan, (2009), pp.3-8, available at:
<http://works.bepress.com/cgi/viewcontent.cgi?article=1004&context=david_pimentel>, accessed
161

must be open to drawing on disciplines outside the legal field such as

anthropological and sociological research which have demonstrated that the
mere holding of different values on justice does not mean those values are less
sophisticated.18 Indeed, no system is perfect. The difference between Western
legal systems and other systems in terms of the access to and quality of justice is a
question of degree, and the wholesale export of Western values may merely
substitute one set of inequalities for another.19 Accepting legal pluralism as a
reality is one thing; actually paying it more than lip service in program
development is quite another.20
C. Recurring Features of Customary Legal Systems
However, the complexity and variability of customary legal systems should not
cause rule of law practitioners to despair of grasping the broad nature of those
systems.21 It is possible to isolate the recurring features of customary legal
systems that, although not applicable or accurate in every community, are thought
to contribute to the preference for customary dispute resolution throughout much
1 December 2010. For the formal version of this paper, see Vol.2, Issue 1 of the Hague Journal on
the Rule of Law (2010).
18
See, for example, Tanja Hohe and Rod Nixon, Reconciling Justice: Traditional Law and State
Judiciary in East Timor, paper prepared for the United States Institute of Peace (2003), which
discusses post-conflict East Timor. The authors, an anthropologist and a development sociologist,
discuss the role of belief in the supernatural in customary societies. Such beliefs are often thought
by foreign experts and local intellectual elites alike to be something that development programs
need to modernize in order to implement rule of law reforms. This paper takes the position that it
is only beliefs that result in violation of human rights norms that need to change, though
determining which beliefs fall into that category is a challenge in itself. See Part III, infra.
19
Sally Engle Merry, From Law and Colonialism to Law and Globalization - A Review Essay on
Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and
Zambia, 28 Law and Social Inquiry 2 (2003), 575.
20
Customary legal systems are also neglected in programming because they have traditionally
been deemed of limited impact in stimulating economic development. They are not regulated by
the State and lack access to larger markets and loans. See Hernando de Soto, The Mystery of
Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic
Books, 2000). Development banks and private sector interests also favor systems that encourage
foreign investment. See Tiernan Mennen, Legal Pluralism in Southern Sudan: Can the Rest of
Africa Show the Way?, 3 Africa Policy Journal (2007), 10, available at:
<http://www.hksafricapolicyjournal.com/sites/default/files/Legal_Pluralism_in_Southern_Sudan_
-_Can_the_Rest_of_Africa_Show_the_Way.pdf>, accessed 1 December 2010.
21
See Sally Engle Merry, Legal Pluralism, 22 Law and Society Review 5 (1988), 885, cautioning
against an overly complex view of legal pluralism: since if everything is complex and variable
how can one say anything?
162

of the world.22 Empirical evidence suggests that customary legal systems are
positively viewed by communities in two key ways:23 first, they are substantively
and procedurally acceptable; and second, they are geographically, financially, and
linguistically accessible, particularly for people living outside urban areas24 in
developing and post-conflict countries.
Customary legal systems deal principally with three substantive areas of
law: the law of obligations (an amalgam of what Western legal traditions have
separated into contract, torts, and criminal law); family law; and property law and
succession.25 These represent key areas in which communal conflicts usually
over scarce resources frequently arise and for which an effective dispute
resolution mechanism is needed.26 Given the direct relevance of this subject-
22
This paper focuses on customary proceedings that are brought before community leaders, as
opposed to more informal mediation that sometimes occurs beforehand. Many disputes are
resolved this way and never make it to a community forum.
23
See generally Jane Stromseth, David Wippman and Rosa Brooks, Can Might Make Rights?
Building the Rule of Law After Military Interventions (New York: Cambridge University Press,
2006), pp.334-339; John Dempsey and Noah Coburn, Traditional Dispute Resolution and Stability
in Afghanistan, Peacebrief 10 (Washington DC: United States Institute of Peace, 2010), pp.2-3;
Minneh Kane, J. Oloka-Onyango and Abdul Tejan-Cole, Reassessing Customary Law Systems as
a Vehicle for Providing Equitable Access to Justice for the Poor, paper given at a World Bank
Conference (Arusha, 12-15 December 2005), pp.9-11, available at:
<http://siteresources.worldbank.org/INTRANETSOCIALDEVELOPMENT/Resources/Kane.rev.pdf>,
accessed 1 December 2010; Wojkowska (2006), supra note 15, p.13. Of course, customary legal
systems are not always typical, nor are they necessarily endowed with many of the positive
qualities often attributed to them. See ICHRP (2009), supra note 2, pp.52-58 which gives specific
examples of how positive and negative stereotypes surrounding customary legal systems have
proved untrue in many countries. See also Cherry Leonardi, Leben Nelson Moro, Martina Santschi
and Deborah H. Isser, Local Justice in Southern Sudan, Peaceworks No. 66 (Washington DC:
United States Institute of Peace, 2010).
24
Much of the literature assumes that customary law is applied in rural areas, while statutory law
is applied in urban settings. This oversimplifies experience. The rural/urban distinction refers more
to the degree of acceptance of Westernization, than location. In addition, the focus of customary
law is personal status and tribal/ethnic identity, which follows those to whom it applies
everywhere. See Chidi Anselm Odinkalu, Pluralism and the Fulfillment of Justice Needs in Africa
(Open Society Institute Africa Governance Monitoring and Advocacy Project, 2005), p.4,
available at:
<http://www.afrimap.org/english/images/paper/Odinkalu_Pluralism_Justice_ENfin.pdf>.
Customary courts are active in the capital city of Juba in Southern Sudan.
25
Justice Makec uses this taxonomy. See Makec (1988), Customary Law of the Dinka People,
supra note 12, p.186. Customary law also often has secondary norms (conflict of laws and
procedural rules) to determine how to apply the substantive law. See Christina Jones-Pauly, Penal
Justice in South Sudan: Facilitating Councils of Traditional Leaders in Determining
Customary/Community Laws in Central Equatoria State (2008), p.45 (on file with the author and
available at UNDP Sudan).
26
Although some customary legal systems develop their own by-laws, most appear to deal
exclusively with dispute resolution, which begs the question of whether they are legal systems, at
163

matter jurisdiction to everyday life, the customary legal system garners a high
level of satisfaction from the community. Customary legal systems often address
the full range of problems which ordinary people confront, including cases that
the state courts may not be able or willing to hear. For example, state courts
cannot punish behavior that is not recognized as a criminal offense by the State,
even though the behavior may be contributing to insecurity within a community.27
In some instances, the norms applied by customary dispute resolution
mechanisms can, counter-intuitively, also be more modern and relevant than
statutory law. This happens when imported laws become outdated and the
government does not have the resources to engage in law reform.28
The most significant characteristic of customary dispute resolution is that it
seeks to deliver restorative justice, rather than punitive sanctions, in order to
achieve social reconciliation among the parties and with the community. While
the state legal system seeks to stigmatize and deter harmful conduct, the aim of
customary dispute resolution is to carry out what has been called reintegrative
shaming (or therapeutic jurisprudence), which separates the inherent value of a
person from the harmful act that person has committed.29 Solutions can then be
found to restore the parties to their position before the dispute (through an
apology, compensation, etc) and to allow the offender to return to communal life,
least by Western definition. See Forsyth (2009), supra note 13, p.29. They are reactive to conflict
(like the judiciary) rather than proactive law-makers (like a legislature). For example, customary
legal systems do not usually develop norms regulating corporate activities (other than contract and
civil/criminal wrongs) because such issues do not typically arise in disputes brought customary
fora. Customary leaders also exercise power in a way that does not correspond to any single aspect
of a legal system. Chiefs typically carry out administrative functions (such as ensuring that
community members pay taxes) which go well beyond an adjudicatory role according to Western
orthodoxy on governance and the separation of powers. See Jones-Pauly (2008), supra note 25,
p.8; Isser (2009), supra note 6, p.33.
27
Isser (2009), supra note 6, p.4, finding that many Liberians consider that public insult and
witchcraft are serious issues that are not being addressed by the state legal system as criminal
offenses. This is presumably because it is hard to prove witchcraft beyond reasonable doubt. See
Miranda Forsyth, Prosecuting in the South Pacific, 122 Victorian Bar News (2002), 55.
28
Kane (2005), supra note 23, p.10, referring to an English law of 1677 still applicable in Sierra
Leone despite the fact that many such laws were updated or repealed in England. The authors
rightly note that [T]he customary tribunals will thus be guided much more by existing realities,
than by archaic legislative fiat. In the authors experience, the same has been true in the former
British colonies in Africa where the state courts apply the English common law, even though they
are several years behind current English jurisprudence due to lack of access to updated decisions.
29
See John Braithwaite, Restorative Justice and a Better Future, 76 The Dalhousie Review 1
(1996), 9-32. An earlier version of this work is also available at:
<http://www.iirp.org/article_detail.php?article_id=NDk4>. Ironically, this concept bears more
than a passing resemblance to Western Judeo-Christian thought on loving the sinner, but hating
the sin. However, not all offences are dealt with in this way. Banishment and payback are applied
in rare cases for acts that the community is not prepared to tolerate, such as sexual offences
involving children, witchcraft, repeated murder etc.
164

cognizant of the harm done and less likely to reoffend. For this reason, customary
fora do not distinguish between civil and criminal sanctions, and they will often
order the offender or his/her family to pay compensation for serious crimes, such
as murder, because harsher sanctions would prolong or exacerbate community
tension.30 Unlike the state legal system, in the process of getting at the truth,
customary dispute resolution addresses the root causes of the dispute and not just
the narrow matter at hand.31
Similarly, the procedures of customary courts are familiar to and reasonably
well understood by the community, especially compared with procedures in the
state courts, which are perceived as arcane. In the authors experience, this
awareness generally includes how to lodge a grievance and the process by which
that grievance will be resolved, although it rarely extends to the customary law
itself. Research has shown that, when participants understand the basics of dispute
resolution proceedings, they feel better equipped to detect and seek to remedy
bias or misconduct by the presiding leaders.32 Customary proceedings also tend to
be held in open locations (often outside under a shady tree) and are highly
participatory in that members of the community are not only welcome to observe
proceedings, but may also speak if they have relevant information.33 Matters are
handled principally by community leaders, which is much simpler than treatment
within the state legal system, where multiple institutions such as the police,
prosecution units, courts, and prisons are involved.34 Lawyers do not provide legal
representation before customary fora, which prevents the proceedings from
becoming complex and littered with legal jargon. Informal procedures also allow
matters to be resolved in a more timely fashion than cases pending before state
courts. Disputes can be resolved on-the-spot or in one day35 unless the issues are
30
Other forms of punishment are also seen as inappropriate. For example, custodial sanctions
imposed by the State are often seen as an unfair privilege that provides perpetrators with
accommodation and meals, leaving dependent victims to fend for themselves. See Carolyn
Graydon, Local Justice Systems in Timor-Leste: Washed up, or Watch this Space?, 68
Development Bulletin (2005), 67.
31
Isser (2009), supra note 6, p.4.
32
Ibid., p.44.
33
Makec (1988), Customary Law of the Dinka People, supra note 12, p.237; Forsyth (2009),
supra note 13, pp.100-101.
34
Forsyth (2009), supra note 13, p.120. The community leaders who deal with disputes vary in
each community and may include chiefs, elders, religious leaders, those who administer rituals,
heads of secret societies, leaders of trade and business guilds, etc.
35
See, for example, Christina Jones-Pauly, Penal Justice in Southern Sudan: Facilitating
Traditional Leaders Councils in Determining the Rules of Community and Customary Laws in
Lakes State of Southern Sudan (2008), p.25 (on file with the author and available at UNDP
Sudan). Compare Stephen Golub, Non-State Justice Systems in Bangladesh and the Philippines,
paper prepared for the United Kingdom Department for International Development (DFID)
165

complex, so tensions do not fester and escalate. This is obviously vital in a post-
conflict context. There is far less homage paid to due process and precedent than
in the state courts because appearance before customary fora is not coerced, and
few cases are genuinely alike when one considers the root causes of a conflict.36
Moreover, the enforcement of decisions tends to be straightforward, with social
pressure invoked to ensure compliance.37 Some customary legal systems allow
appeals, usually to a higher chief or group of chiefs within the community.
Customary legal systems are also more accessible to communities. Few
governments in developing and post-conflict countries have been able to extend
the reach of the state legal system throughout their territory. However, disputants
can access justice in customary fora without having to go to the expense or
inconvenience of traveling several days to an urban center.38 Cases are sometimes
heard for free, or a one-off fee (often nominal and payable in livestock, produce,
or community service) is required to initiate proceedings. Litigants in the state
courts face an array of fees whether imposed in accordance with the law or not
which are often unrelated to the merits of the case.39 This is not to say that
customary leaders always require reasonable fees, but those who demand
(2003), p.4, available at: <http://www.gsdrc.org/docs/open/DS34.pdf>. Golub points out that the
Shalish in Bangladesh may extend over several months.
36
Penal Reform International (PRI), Access to justice in Sub-Saharan Africa: the role of
traditional and informal justice systems (Penal Reform International, 2000), p.36.
37
Law enforcement is often not available to enforce decisions, so social pressure is used to
discourage disobedience and recidivism. See Makec (1988), Customary Law of the Dinka People,
supra note 12, pp.34-35. However, loss of respect for customary rulings is weakening social
enforcement. Several factors contribute to such loss of respect: chiefly misbehavior or corruption;
less familiarity by chiefs with disputants (due to rapid growth in communities) so that decisions do
not match the parties circumstances; an influx of Western ideas through youth or the diaspora;
rampant criminality and acceptance of crime as a means to earn a living; failure by powerful
people to follow rulings, and the militarization of society. See Forsyth (2009), supra note 13,
pp.113-120; Jok (2004), supra note 2, p.28; Andre Le Sage, Stateless Justice in Somalia: Formal
and Informal Rule of Law Initiatives (Geneva: Centre for Humanitarian Dialogue, 2005), pp.36-
37.
38
A survey of five Indonesian provinces revealed that customary fora were within walking
distance for most villagers, and easily accessible for 72% of respondents. See UNDP, Justice for
All? An Assessment of Access to Justice in Five Provinces of Indonesia (UNDP, 2007), p.77
(referred to below as Justice for All?).
39
In Liberia, litigants are routinely gouged with fees at each stage of a criminal matter, which
makes the pursuit of justice in state fora financially prohibitive. These include transport fees for
police to investigate a case or take a suspect into custody; ad hoc filing, stationery, and case
registration fees for lawyers; bailiff fees for summoning witnesses; payment for the provision of
food to an accused held on remand, etc. See Isser (2009), supra note 6, pp.40-41. In the authors
experience, even jurors in Liberia demand fees from litigants! Outrageous examples of fee
demands can be found in the United Nations Mission in Liberia Human Rights Reports which are
available at <http://www.unmil.org/1content.asp?ccat=humanrights&zdoc=1>. See also Justice
for All?, ibid., p.78 for fees in Indonesia. In Sierra Leone, victims of violent crime have to pay for
166

excessive fees risk losing their moral authority or being deposed, especially when
they have been elected to a chiefly role (as opposed to having assumed a
hereditary position) and are directly accountable to the community. By contrast,
judges in the state system can and do utilize the veil of judicial independence to
pre-empt further inquiries into their behavior.
Apart from fees, litigants in the state legal system have to pay for legal
representation and are also likely to lose income in time spent away from their
livelihoods at lengthy court proceedings. Even if they win, they will not receive
any compensatory payment in a criminal case because fines are payable to the
State, and the victim is treated more as a witness than a party who has been
wronged.40 Cases before the state courts are often abandoned because they cost
more than they are worth pursuing, particularly for those living in extreme
poverty.41 Finally, a customary forum is often the only venue where people can
seek redress in their own language or dialect.42 In the state courts, the parties may
not understand the official language (usually a European language imposed by
colonizing powers), let alone the legal terminology.
Despite its perceived advantages, the choice to use (and subject oneself to
the sometimes harsh penalties administered by) a customary dispute resolution
mechanism may not always be voluntary because of the sheer failure of the state
legal system as a realistic alternative, as well as social pressure not to take matters
outside the community. However, there appears to be a real affinity for the
customary legal system that persists beyond these practicalities. A recent study in
Liberia found that even if the formal justice system were able to deliver
affordable, timely, and impartial results, it would still not be the forum of choice
medical examinations and medical reports unless they find a non-governmental organization
(NGO) that will pay. See Clare Castillejo, Building Accountable Justice in Sierra Leone, Working
Paper No. 76 (Madrid: Fundacin para las Relaciones Internacionales y el Dilogo Exterior,
2009), p.5.
40
Forsyth (2009), supra note 13, p.120; PRI (2000), supra note 36, p.9.
41
However, customary leaders sometimes impose fines and compensation orders that are
financially crippling to those who are ordered to pay. See Le Sage (2005), supra note 37, p.37.
42
Indeed, many people in countries where access to education is limited do not have a good grasp
of their own language. Some communities have developed ways to assist people to articulate their
grievances. For example, the Agam-long in Dinka customary law is a person chosen for his
command of the language of the court who repeats aloud the words of each speaker and
summarizes long statements in more precise terms. See Makec (1988), Customary Law of the
Dinka People, supra note 12, p.234. The new Criminal Procedure Code in Southern Sudan
requires interpretation when evidence is given in a criminal trial in a language not understood by
the accused. It is not clear whether this provision is followed. See 203 of The Code of Criminal
Procedure Act, 2008 (Southern Sudan, Gazette No. 1, Vol. 1, 10 February 2009), available at:
<http://www.goss-online.org/magnoliaPublic/en/Laws--Legislation--Policies/mainColumn
Paragraphs/0/content_files/file8/11a.pdf>.
167

for many rural Liberians43 because customary legal systems provide the kind of
justice that people seek. Indeed, for many, the mere continued existence of a
customary legal system represents a hard-won victory in the fight for self-
determination.44 Customary legal systems are resilient because they are closer to
the grassroots45 and are often the only structures left standing when other
institutions have been decimated by conflict or weakened by external influences.
They have rightly become a central focus in rule of law programming.
D. Potential Pitfalls in Providing Support to Customary Legal Systems
Justice is never completely blind. As much as legal systems around the world
strive for balance in dispensing justice, there are invariably groups that are not
treated equally in the decision-making process because of gender, race, socio-
economic background, or other status. Customary legal systems are certainly no
exception. Empirical evidence suggests that there are several groups whose rights
are often subordinated to those of other groups or to the community in the
application of customary law. Rule of law practitioners not only need to be aware
of this problem, but must also be more than superficially familiar with local
customs and institutions to avoid inadvertently supporting unacceptable
practices.46
The literature on customary law is replete with examples of egregious
practices that substantively or procedurally violate human rights standards found
in international and regional conventions (including those ratified by the
43
Isser (2009), supra note 6, pp.3-4. See also Graydon (2005), supra note 30, p.67. Not
surprisingly, there is also evidence that customary legal systems are perceived as fair in
themselves and fairer than state courts. See Isser (2009), supra note 6, p.44; Justice for All?, supra
note 38, pp.71-74. See also Maria Backstrom, Jeremy Ironside, Gordon Paterson, Jonathan Padwe,
and Ian G. Baird, Case Study: Indigenous Traditional Legal Systems and Conflict Resolution in
Ratanakiri and Mondulkiri Provinces, Cambodia (Thailand: UNDP, 2007), pp.43-47; The Asia
Foundation, Law and Justice in East Timor: A Survey of Citizen Awareness and Attitudes
Regarding Law and Justice in East Timor (Dili: The Asia Foundation, 2004), p.2.
44
Mennen (2007), supra note 20, p.2, referring to the conflict in Southern Sudan. Other examples
are Guatemala and Mozambique.
45
Kane (2005), supra note 23, p.11.
46
Stromseth (2006), supra note 23, p.337. Awareness of unacceptable practices is all the more
important because contemporary definitions of the rule of law are moving from an emphasis on
formal requirements (government bound by law created through a democratic process; predictable
and efficient rulings, etc) to a more substantive account that requires respect for fundamental
human rights, such as the prohibition of discrimination, torture, slavery, etc. See Stromseth (2006),
id., pp.68-80. See also Thom Ringer, Development, Reform, and the Rule of Law: Some
Prescriptions for a Common Understanding of the Rule of Law and its Place in Development
Theory and Practice, 10 Yale Human Rights and Development Law Journal 1 (2007), 178-208.
168

government of the country in question), or provisions in national constitutions,

legislation, and case law. These violations fall into two main categories: first,
gender discrimination (though ethnic and religious minorities, young people, and
other vulnerable groups also often experience discrimination under customary
laws); and second, cruel punishment and unfair trial procedures.47
For example, in Afghanistan, a customary practice known as baad involves
the forced marriage of a woman or young girl from the offenders family to one of
the victims close relatives in order to settle a dispute.48 In Solomon Islands, the
father of a deceased man has unfettered discretion under customary law to
distribute his sons estate without making any provision for the widow.49 In parts
of Peru, women are excluded from community activities, deprived of land to
cultivate, and denied access to community funds (effectively banished) if they
choose to marry someone outside their community.50 Meanwhile, in Liberia
accused persons submit to trial by ordeal to prove that they are innocent or telling
the truth. This can involve extremely harmful practices collectively known as
sassywood, such as ingesting poisonous substances, placing a hand in a pot of
47
Celestine Nyamu-Musembi, Review of Experience in Engaging with Non-State Justice Systems
in East Africa, paper prepared for DFID (2003), p.26, para. 5.24, available at:
<http://www.gsdrc.org/docs/open/DS37.pdf>.
48
See Leigh Toomey and J. Alexander Thier, Bridging Modernity and Tradition: Rule of Law and
the Search for Justice in Afghanistan (Washington DC: United States Institute of Peace, 2007),
p.3. Compensatory marriage is also practiced in societies such as Ethiopia, Pakistan (where it is
known as vani, swara, or sang chatti), Papua New Guinea, Somalia (godobtir), Southern Sudan,
Vanuatu, and Zimbabwe, to name a few. Customary practices and laws disadvantage women in
multiple ways, including: (i) economic disempowerment (denial of inheritance rights, land
ownership, and the right to education); (ii) inequality before the law (laws condoning domestic
violence against women, laws that treat women as perpetual minors); (iii) violation of physical
integrity (female genital mutilation, honor killings, forced and Levirate marriages), and (iv) social
marginalization (refusal to allow women to participate in decision-making at the village level or in
the family, and requiring men to represent women at customary fora). These are common practices
in many parts of the world. Yet women continue to support customary law. See, for example,
Justice for All?, supra note 38, pp.65-66, 72, 290. This may reflect a level of comfort of women
with familiar traditions, a lack of alternative avenues of redress, or limited knowledge about and
internalization of their rights.
49
Jennifer Corrin Care, Customary law and womens rights in Solomon Islands, 51 Development
Bulletin (2000), 21-22 citing the case of Tanavulu & Tanavulu v. Tanavulu and SINPF,
unreported, High Court, Solomon Islands, civ. case 185/1995, 12 January 1998). In that case, the
deceaseds father did, however, distribute the estate to male relatives and to the deceaseds son.
50
Although the same punishment is not imposed on men. See Julio Faundez, Non-State Justice
Systems in Latin America - Case Studies: Peru and Colombia (2003), p.20, available at:
<http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/Faundez.pdf>, accessed 1
December 2010.
169

boiling oil, or having a hot cutlass applied to skin, to determine guilt or

innocence.51
Moreover, if that is not enough, aspects of restorative justice that go to the
very essence of customary legal systems (namely, the payment of compensation
for serious offenses52 and the imposition of collective liability for the act of one
person) raise human rights concerns that cannot be ignored. In addition, some
aspects of customary systems go beyond restorative justice and actually sanction
violence. For example, some customary laws allow individuals to seek their own
justice by blood feuding, payback, and honor crimes. Without some form of
external human rights intervention, these feuds remain unchallenged unless and
until the customary law changes to outlaw this behavior.
That said, one important caveat is in order. Human rights violations arise out
of social issues for which neither customary nor state legal systems (whose
statutory law can also be discriminatory) are solely responsible. Replacing
customary legal systems with state institutions (or vice versa) will make little
difference if the underlying societal attitudes and power structures do not change.
As a recent study put it, those on the margins of society are also on the margins
of legal orders, state or non-state.53 However, recent research has shown that,
with appropriately targeted initiatives (training, negotiated participation of women
in leadership roles, and incremental and internal review of human rights norms by
communities), it is possible to influence long-held attitudes toward minorities and
other vulnerable groups.54
Customary legal systems have also proven ineffective in dealing with inter-
ethnic or cross-communal disputes and disputes involving a third party such as the
government or a corporate entity. This is because the authority of customary
51
Isser (2009), supra note 6, pp.57-65. It is believed that the innocent and those telling the truth
will not be harmed. There are more benign versions of sassywood, such as taking an oath on the
understanding that supernatural powers will cause the oath-taker harm in the future if he/she is not
telling the truth. Sassywood (which also refers to the poisonous bark of a tree), and trial by ordeal
is now banned under Liberian law, but is still widely practised in one form or another.
52
Serious offenses might include unlawful killing (murder, manslaughter, etc), rape, grievous
bodily harm, armed robbery, and major theft, for which punishment by the State is necessary to
recognize the victims rights and deter the commission of similar crimes. With serious penalties at
stake, it is argued that such cases are better resolved in the state courts, where greater formality of
procedures will protect the rights of the victim and the alleged offender. See, for example,
Wojkowska (2006), supra note 15, p.23. However, even this categorization of serious offenses
reflects normative choices. In some societies, rape is not considered serious enough to merit
referral to the police. See Tess Newton Cain, Convergence or Clash? The Recognition of
Customary Law and Practice in Sentencing Decisions of the Courts of the Pacific Island Region, 2
Melbourne Journal of International Law (2001), 63.
53
See ICHRP (2009), supra note 2, p.51.
54
For specific examples, see ibid., pp.55-57.
170

leaders rarely extends beyond their own sphere of influence.55 Moreover,

neither party to such disputes usually has sufficient social leverage over the other
party to induce obedience to decisions. Nor would social reconciliation
necessarily be a priority between two different groups unless they had a shared
interest, such as avoiding future cycles of revenge. The lack of an impartial forum
for these types of disputes would also likely result in any decision being regarded
by either or both sides as illegitimate.56 Similarly, customary dispute resolution is
not effective when there is a significant power imbalance between the parties,
whether financially, militarily, or in some other respect, as the stronger side may
either influence the ruling, or fail to respect it.57 Finally, as noted earlier,
customary legal systems tend to focus principally on the law of obligations,
family, and property law. Disputes involving other issues, such as environmental
claims or taxation cases, may not be regulated by a customary norm or may not be
amenable to adaptation of existing customary norms. Such cases are more
appropriately heard before the state courts. Customary law was arguably never
intended to apply to such disputes because it developed in societies that did not
contemplate the kind of social organization that these areas of law assume.
The fact that customary law is usually not written (and cannot be referenced
later by customary leaders or judicial authorities within the state legal system) can
be a significant weakness. Unlike legislation, which can be expressly repealed by
subsequent enactments, it is very hard to know whether, and if so when, unwritten
customary law has changed.
This brief review of the merits of customary legal systems militates in favor
of including a customary law component in most rule of law programs,
particularly in countries where there is a good chance of maximizing the potential
of customary legal systems while minimizing their deficiencies. Of course, this
should be done only after rigorous political, social, and legal analysis of the
55
Wojkowska (2006), supra note 15, p.23.
56
Communities have found ways to deal with these issues. The author understands that there has
been a recent initiative from the Judiciary of Southern Sudan to convene special courts to hear
inter-community disputes, particularly those involving cattle raiding, which is a major cause of
instability in Southern Sudan. The President of the Supreme Court of Southern Sudan has power
to convene such a court under 16(2) of The Code of Criminal Procedure Act, 2008, supra note
42. The author also understands that the intention is to invite customary chiefs to sit with state
judges on these courts, as is foreseen by 16(2) (assessors). It remains to be seen whether the
customary leaders will be treated as equal partners in such a court. See also Leonardi (2010),
supra note 23, pp.66-68. Ascertainment research in Southern Sudan has also revealed that in
cross-communal disputes (or mischiefs), the chiefs of some communities meet and adjudge the
matter together. See Jones-Pauly (2008), supra note 25, p.8 and Mennen (2007), supra note 20,
p.7. This assumes that the laws of the two communities do not conflict or, if they do, that a choice
of law rule is applicable, or some other compromise can be reached.
57
Le Sage (2005), supra note 37, p.36. Customary leaders may also be susceptible to bias in
rendering their decisions.
171

country in question is carried out (including exactly how customary legal systems
work in practice),58 and the informed consent of government and customary
leaders to make an intervention is obtained. The question then is not whether to
engage customary legal systems, but how to do so in a way which complements
the state legal system.
III. POLICY OPTIONS
It might be argued that any rule of law intervention in a developing or post-

conflict context is a form of cultural imperialism (or at least benign neo-
colonialism) per se because it naturally involves the importation of foreign
concepts and values to a local culture.59 This is particularly true of reforms
involving state and customary legal systems, which entail introducing changes to
established institutions based on external perceptions of how the two systems
should operate and interact. However, when one considers that the alternative of
completely refraining from providing assistance would allow access to justice to
founder in both the state and customary legal systems and leave unchallenged the
human rights violations in both systems, the imperative of some form of
intervention is clear. In addition, rule of law programs are often initiated at the
request of beneficiary countries, which one might argue implicitly accept
institutional reform either as a good in itself, or as a necessary condition of
receiving more tangible resources and financial benefits.
Nonetheless, however necessary such intervention may be, it is never going
to be easy or neutral. Additionally, it calls for a delicate balance between
competing interests in both systems and between complex issues such as
governance, politics, power structures, sovereignty, cultural practices, ethnic or
tribal identity, attitudes toward self-determination, and sensitivities heightened
after years of underdevelopment and war. This paper considers five different
policy options that might be employed to achieve such a balance. It assumes,
based on the previous discussion in Part II, that there is value in developing
models of cooperation that engage both state and customary legal systems. It does
not consider other options such as the complete abolition of customary law or its
total incorporation into the state legal system, nor the more anarchist and unlikely
scenario that customary legal systems would ever be in a position to completely
replace the state legal system. This paper also seeks to expand on the guidance
58
See Part IV of this paper, infra, for further discussion of the analysis and research which is
needed.
59
Pimentel (2009), supra note 17, p.5.
172

currently available to rule of law practitioners60 on the policy options to consider

when designing a program that engages both systems, rather than speaking only to
idiosyncratic country or regional circumstances that may or may not be suitable in
other contexts. It also avoids developing broad models that give no indication of
the specific changes that would have to be made, as much of the literature to date
has done.
These policy options make three further assumptions. First, they assume that
developing and post-conflict countries will not, at least for generations, have a
uniform legal system that works the same way everywhere for everyone. It is
unreasonable to expect uniformity in vastly under-resourced societies, and
research has shown that target populations do not want a uniform system at the
expense of locally-owned dispute resolution mechanisms.61 In fact, there need not
even be a uniform relationship between the State and different customary legal
systems (such as religious systems or various community-based systems
belonging to each tribe) throughout a jurisdiction62 although this would be
exceedingly complex in societies with many different customary legal systems.
Second, the policy options assume that action will be taken by the State (either
through legislation or existing state institutions) to develop an appropriate means
of cooperating with customary legal systems. As the party implementing reform,
the State would presumably have the last word on the modalities of cooperation,
even after consulting with customary leaders.63 There is no way around this: the
State has key attributes that make it the only party capable of implementing
reform, including access to national revenue, a central governance structure
recognized by foreign donors, a monopoly on coercive power, and institutions,
such as human rights commissions, that demand a minimum adherence to human
rights.64 Third, one might legitimately question whether customary leaders have
60
See, for example, Forsyth (2009), supra note 13, pp.201-239; Wojkowska (2006), supra note
15, pp.25-29; Connolly (2005-06), supra note 10. This paper draws upon and expands the
framework found in the DFID, Non-State Justice and Security Systems, Briefing (2004), pp.19-21,
available at: <http://www.gsdrc.org/docs/open/SSAJ101.pdf> (referred to below as the DFID
Briefing). Some of the literature also employs vague terms, such as the need to recognize or
harmonize customary law, without further explanation of what that entails.
61
See Isser (2009), supra note 6, p.6.
62
See Northern Territory Law Reform Committee, Report of the Committee of Inquiry into
Aboriginal Customary Law, Report No. 8 (Darwin: Northern Territory Law Reform Committee,
2003), p.6, para. 1.5 which recommended that each Aboriginal community in the Northern
Territory should be assisted to develop its own plan to incorporate traditional law into the
community in anyway [sic] that the community thinks appropriate. See also Forsyth (2009),
supra note 13, p.205.
63
There is a tension between the centralized tendencies of the State and the decentralized nature of
customary legal regimes as Jones-Pauly (2006), supra note 11, p.2 points out. In legal reform, the
balance lies with a State centralized process for the reasons given here.
64
Forsyth (2009), supra note 13, p.204.
173

any incentive to allow or assist in reform, particularly given that reform will be
principally in the hands of the State. The policy options assume buy-in by
customary leaders who, with the erosion of customary law through displacement
of communities, globalization, and other factors,65 need to participate in reforms
that will ensure that their traditions are kept alive. Any attempted reform that does
not do this would likely be ignored by customary leaders.
When rule of law programs engage state and customary legal systems, they
do not begin with a blank canvas. Developments during and after colonization
have significantly affected the relationship between both systems. For example,
many countries (notably in Africa and in the Pacific, but increasingly elsewhere)
have specific constitutional provisions that recognize custom as a source of law,66
with some going further in limiting the operation of other laws and constitutional
guarantees if they undermine customs and traditions.67 More commonly,
constitutional repugnancy clauses restrict the application of customary law if it
is inconsistent with other laws or constitutional guarantees,68 such as human rights
provisions in a Bill of Rights. These developments affect the extent to which
reform is possible.
Finally, the policy options will not be appropriate in every context. Rule of
law practitioners will only get a sense of the right option or the right combination
of options by listening to and taking seriously the concerns of ordinary people
who are the ultimate consumers of services offered by both systems.
A. Codification and Ascertainment of Customary Laws
The first policy option that the State may propose as part of a justice reform
package is codification. This involves attempting to record customary laws in
writing, either in an informal record for use by local communities or, more
commonly, in a statutory form for use by state courts. Unlike other policy options,
65
See note 37, supra.
66
For example, the Interim Constitution of Southern Sudan (2005), arts. 5(c) and 174. See also
Jennifer Corrin Care, The Status of Customary Law in Fiji Islands After the Constitutional
Amendment Act 1997, 4 Journal of South Pacific Law (2000) for a discussion of specific
constitutional provisions in the South Pacific which explicitly recognize customary law. Custom is
also arguably implicitly recognized in provisions on the rights of minorities, the right to culture
and self-determination, and freedom of belief.
67
For example, the Constitution of Tuvalu (1986) as amended, 11(2)(b), 29(1) and 29(4)(b).
68
For example, the Constitution of Solomon Islands (1978), sched. 3, para. 3(2). However,
15(5)(d) exempts laws that make provision for the application of customary law from other anti-
discrimination requirements in the Constitution. See Corrin Care (2000), supra note 49, for a
discussion of these provisions. See also the Constitution of Colombia (1991) as amended, art. 246;
the Constitution of Peru (1993) as amended, art. 149; the South African Constitution (1996),
39(2) and (3), and the Constitution of Uganda (1995) as amended, art. 2(2).
174

codification is usually ancillary to other overall reforms that require knowledge of

the content of customary law, such as the harmonization of customary law with
statutory law, or legislative amendment that incorporates customary fora into the
state system and allows appeals to the state courts. Codification might also be
undertaken as a means of harmonizing disparate customary laws so that any
engagement between the State and multiple customary legal systems is less
complicated.69 In exceptional cases, codification may also be implicitly required
by constitutional provisions that recognize custom as a source of law and mandate
legislatures to develop that law.70
Codification is useful in providing government decision-makers, judges,
donors, returning diaspora and refugees, and even communities themselves with
more accurate information on the nature and content of customary laws and
institutions, as well as in simply memorializing the history and culture of a
community at any given time. It may be an important means of bringing human
rights violations within otherwise opaque communal structures to light, assuming
that community leaders (who are usually acutely aware of domestic and
international scrutiny of their practices) decide to reveal the entire content of their
customary law. Codification may also reduce the incidence of unwitting breaches
of customary law,71 as well as settling communal disagreement on what the law
actually says. Codification in a statutory form overcomes the difficult issue of
proving custom in a court, which is discussed further below.
However, codification is often controversial,72 particularly when it involves
restating the customary law in a statutory form. It is often viewed by communities
as removing the key strength of customary law, namely its status as a living law
that yields fair outcomes tailored to each case. Experience in Africa confirms this
suspicion. In the late 1960s, the School of Oriental and African Studies at the
University of London organized a codification project in Kenya. The codes
produced by the project were widely consulted by the judiciary, but used in a rigid
manner without taking into account the local context.73 One solution to this
69
Or possibly as an attempt to unify different factions which might be seen as a threat to the
central state. See Chirayath (2005), supra note 6, p.14, citing the case of Tanzania in the post-
independence 1960s.
70
See New Zealand Law Commission, Converging Currents: Custom and Human Rights in the
Pacific, Study Paper 17 (Wellington: New Zealand Law Commission, 2006), p.190, para. 13.21
(referred to below as Converging Currents).
71
Ibid., p.191, para. 13.23. See also note 108, infra.
72
This may be more a reaction to the involvement of foreigners than an objection to written laws.
See Forsyth (2009), supra note 13, p.112, noting that in Vanuatu, codification is seen as important
to help young people to remember the laws; to harmonize penalties in different communities; to
reclaim legislative authority lost to the State, and to ensure that community members participate in
the drafting of their own laws and cannot later argue with those laws.
73
DFID Briefing (2004), supra note 60, p.19.
175

problem might be to provide that the customary law that continues to evolve will
take priority over earlier codified versions,74 though this defeats the purpose of
codifying and gaining legal clarity in the first place. Other solutions might be to
codify customary values rather than customary practices75 or to develop a non-
prescriptive customary law commentary or restatement.76 Where possible,
codification should be undertaken in conjunction with members of the community
(perhaps in a village council or workshop format), rather than solely by state
officials or foreign development practitioners because this at least preserves a
degree of community ownership in determining the content of community laws.77
Codification also raises serious issues regarding ownership of the
knowledge of customary law. In the Western world, knowledge is power. So
too in customary societies.78 Once codified, the State effectively has control of the
customary law, which can then be the subject of new legislation or incorporated
into existing legislation. In either case, only the legislature is empowered to
amend that law and the communities that produced and apply it no longer have a
74
See Bhe & others v. The Magistrate, Khayelitsha & others, Case CCT 49/03, 2005 (1) SA 580
(CC) which came before the South African Constitutional Court. The case involved legislation
that purported to give effect to the customary law of succession. When the applicants partner died
intestate, the respondent Magistrate appointed the deceased mans father as sole heir of the estate
in accordance with the legislation, but to the detriment of the applicant and her daughters. In
delivering the majority judgment, Langa D.C.J. struck down the legislation, as well as the
customary rule of succession (male primogeniture). His Honor recognized that the living
customary law may have been distorted by the codified customary rules of succession, which are
no longer observed (paras. 81-87). It was argued that the Court should modify the customary law
in accordance with 39(2) of the South African Constitution which requires courts when
developing the customary law to promote the spirit, purport and objects of the Bill of
Rights. Alternatively, the Court was urged to simply use the existing living customary law,
which had developed around the official customary law and had more flexible rules on
primogeniture. The majority declined to take either of these steps because of a lack of evidence of
the content of the living customary law and the fact that it would involve piecemeal case-by-
case development. However, Ngcobo J. was prepared to develop the customary law to bring it into
conformity with the Constitution by deeming the eldest daughter eligible to succeed to an estate.
75
See Converging Currents (2006), supra note 70, pp.190-194, paras. 13.20-13.36. See also
Forsyth (2009), supra note 13, p.231, arguing that written customary law, like legislation, can be
amended when necessary and does not have to be inflexible.
76
Converging Currents (2006), supra note 70, pp.190-194, paras. 13.20-13.36, noting that a
commentary could be used together with judicial benchbooks and could discuss customary
practices, including those which fall foul of human rights standards.
77
For example, Makec (1988), Customary Law of the Dinka People, supra note 12, pp.253-279.
This work contains a codification of the customary law of the Dinka, Luo and Fertit tribes in
Sudan. Although Justice Makec helped draft this code while he was the Speaker of a State
Assembly, it was well received because he was a member of, and internal to, the communities
studied.
78
Jones-Pauly (2006), supra note 11, p.8.
176

role in shaping its future development.79 This is particularly sensitive in the case
of spiritual and other knowledge which, according to customary law, must not be
shared with people outside the group and, if so shared, is thought to result in
supernatural harm to those who divulged it and will often attract serious
community punishment such as banishment.80
There are also real practical difficulties in conducting codification in a
country where there are multiple customary legal systems. How does one choose
which customary law to codify? The choice may in effect reveal a normative
judgment as to which systems are more important and therefore must be
prioritized. Moreover, if the codified customary law is to be harmonized with
other customary laws or even with statutory law, this may be harmful if it results
in the suppression of cultural diversity or minority beliefs and practices.81 Even if
one resolves these issues, there is still the wider question of how to distinguish
between custom (the usual behavior within a group) and customary law (rules
governing that behavior).82 Not every social norm is law, just as in the Western
world. Extensive consultation with the community leaders who determine the
content of customary laws might resolve this problem.
Ascertainment may be a workable alternative although it shares some of the
above shortcomings. Ascertainment projects assist communities to determine their
own laws but, unlike codification, the focus is on describing (not prescribing) the
principles applied. Ascertainment research usually considers the evolution of
disputes, how they are handled, and the factors influencing their resolution, with a
view to understanding whether certain practices and institutions should be
preserved as inherently valuable for promoting peace and stability. In other words,
the process of ascertainment does not seek to exhaustively reduce customary laws
to a binding legal format that can be reapplied in other circumstances.
79
Pimentel (2009), supra note 17, p.19, note 76. As Pimentel observes, although the common law
evolves, it is not as responsive to change as customary law, which is retained in the mind and
memory of a contemporary person, who attempts to apply it in the present-day world, ideally
bringing contemporary sensibilities and local wisdom to the task.
80
A good example is the belief of Australian Aboriginal people in secret womens business,
which is so sacred that the question of access to such information for litigation purposes has itself
been the subject of litigation. See Reid Mortensen, Interpreting a Sacred Landscape: Aboriginal
Religion and the Law in Australia in the 1990s, in Ernest Caparros and Louis-Lon Christians
(eds.), La Religion en Droit Compar LAube du 21e Sicle [Religion in Comparative Law at the
Dawn of the 21st Century] (Brussels, 2000), p.281, pp.292-93.
81
Jones-Pauly (2006), supra note 11, p.8; DFID Briefing (2004), supra note 60, p.19. See also
ICHRP (2009), supra note 2, p.77, note 264, citing the wishes of some Northern Nigerian women
to keep Muslim laws uncodified because of fear that codification would strengthen homogenizing
regressive trends in Muslim laws.
82
Jennifer Corrin Care, Wisdom & worthy customs: customary law in the South Pacific, 80
Reform (2002), 32.
177

Ascertainment research is mainly carried out by foreign lawyers and

anthropologists. Therefore, it is open to the criticism that it may incorrectly
attribute certain features to a group when attempting to describe its practices, for
example by using Western concepts of law that may not exist in the customary
system or by wrongly assuming that customary norms belong to a particular
group.83 This problem can be mitigated by including local experts in the
ascertainment team, particularly those with relevant language skills and who have
a degree of independence from the target group. It also adds credibility to
ascertainment findings to combine the research with observation of cases being
heard in customary fora in order to capture what communities actually do, as
opposed to what they say they do, because opinions vary on what is customary in
any situation. Of course, this will never be a perfect process as communities may
operate differently when under observation.84
However, the results of ascertainment research become outdated as the
customary law changes, and the process of updating previous findings is not
sustainable over the long-term. Customary leaders, who may not be literate and
who often hold other positions, are unlikely to continue researching their own
systems and making the results available, and certainly not without external
assistance. Furthermore, ascertainment research produces only raw data and, if it
is to be useful, must be accompanied by technical assistance in developing
policies to engage customary legal systems. In Southern Sudan, the government is
developing a strategy to carry out ascertainment research and to establish a
Customary Law Development Center which will operate under the auspices of the
Ministry of Legal Affairs and Constitutional Development.
While codification and ascertainment serve their purposes, they are not
always advisable policy options. They should be used primarily to bring legal
certainty to discrete and otherwise esoteric areas of law, such as land ownership,
where clarity may be needed for development to take place. They also need to be
undertaken with the support and participation of the community. Other initiatives,
such as simple procedures to record customary decisions or to register customary
marriages or interests in ancestral land, could also be introduced to reduce the
uncertainty of traditions transmitted through oral culture, without changing the
content of those norms.85 In either case, rule of law practitioners need to tread
carefully to ensure that reform does not become a form of legal positivism, which
83
See Jones-Pauly (2006), supra note 11, p.8, noting that some groups may not agree with their
classification as a group, clan, etc.
84
See IDLO (2010), supra note 3, p.7, discussing the challenges involved in ascertaining
customary law, such as who to ask about customs (not just the leadership or other elites), and the
problem of choosing between contested versions of customary norms. For a full discussion of
problems associated with ascertainment research, as well as explanation of different types of
ascertainment, see Leonardi (2010), supra note 23.
85
See Odinkalu (2005), supra note 24, p.6.
178

seeks to convert customary norms and practices into statutory form, thereby
legitimizing and conferring the status of law upon them.
B. Incorporation of Customary Institutions into the State Legal System
The second policy option is to incorporate customary fora into the state hierarchy
of courts. Unlike codification and ascertainment, which focus on incorporating
norms, this policy options focuses on incorporation at the institutional level. It
would involve enacting legislation that formally recognizes an existing customary
forum as a lower court in the state judicial system, including allowing a right of
appeal from that court to a higher court within the state system. A variation of this
option would involve the State establishing a court (which did not previously exist
within the state structure) and designating it as a customary court to be presided
over by customary leaders. Again, an appeal would lie from the new court to a
higher state court. In both cases, the hybrid courts would ostensibly apply
customary law at first instance. On appeal, the higher courts would use assessors
to determine the content of and how to apply the customary law.86
The benefit of incorporating customary fora into the state legal system is
that it allows for judicial oversight and appellate review of the application of
harmful norms, such as those that violate human rights standards, in cases coming
before the hybrid courts. This would include ensuring greater accountability of
customary leaders in what they decide and how they decide it. Incorporation may
also be important for disempowered people in a local community who would not
otherwise initiate appeals to the state courts.87 In addition, the incorporation
process often facilitates other important reforms, such as clarifying the respective
jurisdiction of courts applying statutory and customary law,88 and limiting forum
shopping between the hybrid courts and other state courts by giving the hybrid
courts exclusive jurisdiction over certain disputes at first instance. Finally, as state
institutions, hybrid courts can utilize the coercive powers of the State to enforce
their decisions.89
However, this top-down approach is unashamedly premised on removing
the separation between the state and customary legal systems, presumably with
the longer-term intention of completely subsuming the customary law into the
86
Though the proof of customary law is problematic and is discussed further in Part III of this
paper, Section C, infra. This paper assumes that such an appeal would not be heard de novo, which
would completely disregard the decision of the hybrid court.
87
See Nyamu-Musembi (2003), supra note 47, p.27, para. 5.26; Connolly (2005-06), supra note
10, p.271.
88
DFID Briefing (2004), supra note 60, p.19. It might also make customary law more credible to
those who oppose it.
89
Connolly (2005-06), supra note 10, p.271.
179

state system once the latter is able to offer functioning courts. For that reason
alone, it is likely to be a politically difficult policy option to pursue.90 Experience
also confirms that transferring the adjudication of matters which raise issues of
customary law to formal courts dilutes the strengths of customary dispute
resolution, ultimately resulting in a creeping formalism when the presiding
customary leaders start to rigidly follow state law and procedure.91
For example, the Local Council Courts in Uganda (which had previously
been established at the community level as a reaction against the post-
independence Ugandan Government) are now formally incorporated into the state
legal system by legislation.92 While these courts retained some features of
customary dispute resolution (for example, lawyers were not permitted to appear
before the courts), observers consider that the customary law has been relegated
to a subordinate status:
[T]he formal system in general certainly views Customary Law as

subordinate, if not so much in the same fashion as their colonial
predecessors did. In addition to reconstructing the interpretation of
Customary Law, the formal system has also effectively made it a
secondary source of law through the legal positivism of the judges, who
often exclude Customary Law in favor of written law.93
Likewise, in Solomon Islands, new Native Courts (which were subsequently

renamed Local Courts) were established by legislation in 1942 to resolve disputes
between parties resident in the area where the courts are located. An appeal lies
from the Local Courts to either the Magistrates Court or the Customary Land
Appeals Court (in land disputes). Although the Local Courts administer
customary law, their constitution and procedure is modeled on Western courts.94
Such courts rarely preserve customary law because they will inevitably restrict the
90
This option was emphatically opposed by chiefs in Southern Sudan in 2006. See Jones-Pauly
(2006), supra note 11, p.7.
91
See Forsyth (2009), supra note 13, p.228, referring to a similar problem with the court
magistrates in Papua New Guinea.
92
DFID Briefing (2004), supra note 60, p.19. See also Kane (2005), supra note 23, pp.6-8.
93
Kane (2005), supra note 23, p.16, discussing the Ugandan Local Council Courts. These courts
were formalized by the Resistance Councils and Committees (Judicial Powers) Act 1987. In 2006,
the Ugandan Parliament enacted new legislation to strengthen the power of the courts to dispense
justice. See the Local Council Courts Act, 2006. Another example of the incorporation of
customary fora into the state system is found in the Samoan Village Fono Act, 1990.
94
Jennifer Corrin Care, Courts in Solomon Islands, LawAsia Journal [1999], 99; Local Courts
Act, Cap. 19 (Solomon Islands). Village courts are also used in Vanuatu and Papua New Guinea.
180

form which claims may take and the remedies available.95 Customary fora
continue to operate outside the state system despite these changes.
That said, not all attempts to create hybrid institutions have failed. The
Barangay system (a series of small local government units) in the Philippines
works well and resolves a large number of community disputes. It was established
by the government in 1978 as part of the state system, and each council is run by
government officials or their appointees. However, it operates at the village level
and is based on traditional practices. The key to the success of this system is that
it has not been hampered by the trappings of a Western institution and remains
largely informal. It also receives support from NGOs who educate the community
about the system, which helps to allay community suspicions and prejudice.96
Indeed, experience with hybrid courts shows that, rather than exposing the
community to the state system incrementally, the exact opposite sometimes
happens when community suspicion is not effectively managed. That is, ordinary
people who are skeptical of changes introduced from above start taking their
disputes to newly formed customary systems. For example, a codification project
in Tanzania in the 1960s resulted in the incorporation of native courts into the
judiciary. However, the new courts were rejected by local communities, which
established new dispute resolution mechanisms based on traditional practices.97
Ironically, this may generate conflict between those in the community who have
broken with tradition and use the new courts and those who refuse to do so.98
Unlike a true customary forum, a hybrid court is ill-equipped to resolve conflict
before it escalates because a final decision in the state system is delayed by the
appeals process and the granting of interim relief. This example shows that, like
95
See Connolly (2005-06), supra note 10, p.274, citing Gordon R. Woodman, How State Courts
Create Customary Law in Ghana and Nigeria in Bradford W. Morse and Gordon R. Woodman
(eds.), Indigenous Law and the State (1998) pp.181, 184-186.
96
Golub (2003), supra note 35, pp.12-15. However, Golub also points out that bias on the part of
the presiding officials is problematic. Allowing government officials to run a customary dispute
mechanism may not work in other contexts, such as in post-conflict settings where there is
hostility toward government officials who may have been complicit in the conflict, or where there
is a history of customary leaders being co-opted by the State. In addition, the doctrine of the
separation of powers may be an issue when government officials are carrying out administrative
functions. The Supreme Court of Liberia has declared that administrative customary courts staffed
by executive officials violate this doctrine, despite the fact that such courts continue to operate.
See Isser (2009), supra note 6, p.38, note 4. While the Barangay system works well, other hybrid
institutions (such as the government-run Shalish in Bangladesh, the Local Courts in Sierra Leone,
and the Gacaca courts in Rwanda) have received mixed reviews.
97
See Chirayath (2005), supra note 6, p.14.
98
Caroline Sage and Michael Woolcock, Breaking Legal Inequality Traps: New Approaches to
Building Justice Systems for the Poor in Developing Countries, paper given at a World Bank
Conference (Arusha, 12-15 December 2005), p.9, available at:
<http://siteresources.worldbank.org/INTJUSFORPOOR/Resources/BreakingLegalInequlityTraps.pdf>,
accessed 1 December 2010.
181

codification, the incorporation of customary institutions into the state system can
create yet another mutation of customary law namely, that applied in the hybrid
courts, as opposed to that applied in the community.99
Despite these shortcomings, integration of customary institutions into the
state system is a real policy option in appropriate circumstances. This might be
the case, for example, when the customary legal system is already cooperating to
a reasonably high degree with the State by referring to the state courts serious
cases or inter-communal disputes that it cannot deal with effectively, or by
handling cases referred to it by state officials. In that way, the integration of
customary institutions into the state system might be seen as a natural step, rather
than an attempt to wrest customary law away from the community.
C. Adaptation of the State Legal System
The third policy option that might be considered is adapting the laws and
procedures in the state legal system to accommodate customary precepts. Like the
previous policy options, this involves bringing customary notions into the state
system. However, unlike the previous policy options, it does not involve changing
the customary system or diluting its strengths. Rather, it attempts to harness the
best features of both systems. Therefore, the term adaptation, not incorporation, is
used.
Adaptation can take a variety of forms: using customary law when drafting
legislation;100 adopting a less adversarial approach in court proceedings;101
influencing the exercise of discretion by state officials (child welfare workers,
police, etc) in situations where customary law might be a contributing factor;102
involving customary leaders in judicial appointments;103 and taking customary law
into account in criminal procedure. Adaptation of the state legal system is most
99
Connolly (2005-06), supra note 10, p.274.
100
Jones-Pauly (2006), supra note 11, p.7.
101
Forsyth (2009), supra note 13, pp.229-230, arguing that common law countries could
incrementally adopt a more inquisitorial approach in court proceedings that would be similar to
customary proceedings. This might include greater judicial control, less emphasis on the role of
lawyers, less complicated procedures, and allowing evidence to be led in more narrative form.
102
Hon. John von Doussa, The recognition of Aboriginal customary law, address at the Australian
Human Rights and Equal Opportunity Commission and International Lawyers Association
Workshop (20 November 2003), available at:
<http://www.hreoc.gov.au/about/media/speeches/speeches_president/2003/customary_law.html>.
103
Forsyth (2009), supra note 13, pp.236, 261, arguing that customary leaders are well placed to
assess whether a judicial nominee has a good grasp of the importance of customary law, and
possibly of the customary law itself.
182

commonly discussed in relation to criminal proceedings in the state courts, and

this paper will focus on that area.
One critical point must first be made. Rule of law practitioners must check
the Constitution and relevant legislation (such as the penal and criminal procedure
codes) for any indication of how customary law is to be taken into account in
criminal proceedings. As noted earlier, some countries have constitutional
provisions recognizing custom as a source of law and enjoining parliaments and
courts to apply it. Some countries have also enacted legislation that provides more
specific guidance. In Kiribati, customary law may be taken into account in
criminal proceedings in determining matters such as the state of mind of a person,
the reasonableness of a persons actions, whether to convict, and what the
sentence will be.104 In Southern Sudan, the new Penal Code provides that the
courts may consider customary law when applying the Act and gives the courts
discretion to award customary remedies for certain offenses, such as murder.105 In
the Federated States of Micronesia, the courts are directed to impose a sentence of
restitution or service to the victim or his/her family wherever appropriate.106
Express provisions like these are rare, however, and often accord wide discretion
to judges on whether to give effect to the customary law.
There are many ways in which the State can use customary law and practice
at each stage of a criminal case involving defendants from customary societies.
First, in the exercise of prosecutorial discretion, a prosecutor may decide that
charges should not be laid or continued when a matter has been dealt with
according to customary law, or even that the charge should be changed in light of
the customary law.107 Second, if charges are brought, traditional beliefs regarding
104
Laws of Kiribati Act (1989), sched. 1, para. 3. See also Laws of Tuvalu Act (1987), sched. 1,
para. 3; Newton Cain (2001), supra note 52, pp.53-54.
105
See The Penal Code Act, 2008 (Southern Sudan, Gazette No. 1, Vol. 1, 10 February 2009),
6(2) and 206, available at: <http://www.goss-online.org/magnoliaPublic/en/Laws--Legislation--
Policies/mainColumnParagraphs/0/content_files/file12/15.pdf>. 206 allows the courts to award
blood compensation for murder at the option of the deceaseds relatives, in lieu of the death
penalty and with a substituted sentence of imprisonment for ten years. More significantly, under
266 and 273, the offenses of adultery and kidnapping a woman to compel her marriage shall be
dealt with according to the customary law of the aggrieved party or, in lieu of that, according to
the Act. The courts also have power under 7 of the Code of Criminal Procedure Act (supra note
42) to award compensation to victims.
106
Federated States of Micronesia Code (1997), tit. 11, ch.12, 1202-3.
107
See, for example, The Queen v. Burton, (South Australia, Supreme Court, 18 July 1994,
unreported). The defendant, an Australian Aboriginal man, was stabbed in the course of a dispute
with another Aboriginal man. The custom between the men required the exchange of one stab for
another, and the victim had presented his leg to the defendant to be stabbed. The defendant killed
the other man and was punished by traditional means. The prosecutor took into account the
customary aspects surrounding the offense and charged the defendant with manslaughter rather
than murder.
183

the importance of facing what one has done, as well as the capacity of customary
leaders to supervise the accused, might be relevant to release of the accused on
bail, rather than remand. Third, at trial it might be argued that the accused has not
committed an offense because the alleged behavior is not punishable under
customary law. This is highly unlikely to succeed in a state court where judges are
disposed to apply statutory law, particularly when the offense is serious, although
it might be relevant in mitigation of the sentence.108 Traditional beliefs may also
be relevant in an affirmative defense to a criminal charge, particularly where the
state of mind or reasonableness of the behavior of the accused is in issue. Fourth,
customary laws may impact upon the procedures used during a criminal trial.109
Fifth, and perhaps most commonly, customary law may be taken into account in
determining the quantum of a sentence.110 It might be argued that a sentence
should be reduced because the defendant has already been punished under
customary law, the offense was committed in obedience to a customary law (such
as payback),111 or the behavior was provoked by the victims breach of customary
law, although none of these is likely to succeed if the offense is serious. Members
of the defendants community may also seek to inform the court of their
perceptions of the seriousness of the crime and the culpability of the defendant
under customary law. In some cases in Australia, Aboriginal elders are permitted
108
See, for example, The Queen v. GJ [2005] NTCCA 20. An Australian Aboriginal man was
charged with assault and having sexual intercourse with a child under the age of 16. The judge at
first instance sentenced the man to 24 months imprisonment, but suspended the sentence after the
defendant had served one month in prison. The child had been promised to the defendant as his
wife when she was four years old. The defendant argued that he believed he was entitled under
traditional laws to behave as he did and did not realize that it was criminal conduct under state
law. This was rejected by the Northern Territory Court of Criminal Appeal, and the sentence was
increased. The Court found that an Aboriginal person who commits a crime when acting in
accordance with custom is less culpable, but that was not the case here. Judges must be wary of
defendants incorrectly claiming that behavior is customary. This has led opponents to claim that
customary law is the problem, rather than the failure by individuals to respect properly applied
custom. See Tom Calma, The Integration of Customary Law into the Australian Legal System
in Rights Protection in the Age of Global Anti-Terrorism, 25 Law in Context 1 (2007), 79.
109
Such as the rules on fitness to plead (because of cultural barriers) and the use of single-gender
juries. See Law Reform Commission of Western Australia, Aboriginal Customary Laws: The
Interaction of Western Australian Law with Aboriginal Law and Culture, Final Report, Project
No. 94 (Perth: Law Reform Commission of Western Australia, 2006), pp.188-191 (referred to
below as the LRCWA Final Report).
110
Either in mitigation or aggravation of a sentence. See ibid., p.181.
111
In Solomon Islands, a man killed members of a rival group after he had witnessed them killing
his brother. He relied on the defense of provocation to reduce a charge of murder to manslaughter.
He also argued that he had acted reasonably because custom dictated payback when a close
relative was killed. This was not accepted by the Court of Appeal which found that payback was
inconsistent with the constitutional protection of the right to life. See Loumia v. DPP [1985-6]
SILR 158. See Corrin Care (2002), supra note 82, p.35 who argues that the provocation defense
should have been considered in light of local custom.
184

to sit with magistrates to assist in determining the sentence.112 Finally, customary

law may be taken into account in determining the nature of the sentence, 113 such
as an order to perform community service within the offenders community or to
pay compensation,114 although this should not include corporal or other
punishments that violate state law or human rights standards.
There is also a potentially larger role for customary law within the state
system in terms of restorative justice.115 As noted earlier, the concept of restoring
parties through reconciliation and reintegrative processes is the central feature of
customary legal systems. Some countries have established restorative justice
programs within the state legal system, which require judges to refer certain cases
(such as juvenile offenders) to restorative justice mechanisms at the community
level. For example, in Southern Sudan, the new Child Act contains two restorative
justice processes: convening of family conferences, and victim-offender
mediation. Both of these are to be conducted in the community, but under the
supervision of government-appointed social workers who can refer children back
to the courts if necessary.116
However, taking customary law and practice into account in the state courts
is fraught with practical and legal problems. In the absence of specific legislative
direction, it is difficult to ensure consistency as to when and how state courts
accept that customary law is a relevant factor to be considered.117 It is also not
clear which customary law would be used to shape the state legal system when
there are multiple and possibly conflicting customary norms applicable to a
matter. Moreover, there is a risk that customary law will become bureaucratic by
its adaptation in the state system, and that its inclusion will be seen as merely a
112
See Law Reform Commission of Western Australia, Aboriginal Customary Laws, Discussion
Paper, Project No. 94 (Perth: Law Reform Commission of Western Australia, 2005), p.142,
referring to the Nunga Court in South Australia, the Koori Court in Victoria and the Murri Court
in Queensland.
113
Chiefs in Southern Sudan have suggested that offenders serving time in state prisons be
educated about customary law values so as to assist in their reintegration into society. See Jones-
Pauly (2006), supra note 11, pp.12-13.
114
Compensation may be preferable because of traditional beliefs and economic reality. In some
societies, a woman who is raped may not be able to marry and may need economic support. See
Stromseth (2006), supra note 23, p.339. Moreover, reporting domestic violence is often akin to
filing for divorce, which leaves women and children financially vulnerable. See Graydon (2005),
supra note 30, p.67.
115
See generally Julie Macfarlane, Working Towards Restorative Justice in Ethiopia: Integrating
Traditional Conflict Resolution Systems with the Formal Legal System, 8 Cardozo Journal of
Conflict Resolution (2007), 487-509.
116
The Child Act, 2008 (Southern Sudan, Gazette No. 1, Vol. 1, 10 February 2009), ch. X, 153
57, available at:
<http://www.goss-online.org/magnoliaPublic/en/Laws--Legislation--Policies/mainColumn
Paragraphs/0/content_files/ file13/16.pdf>.
117
See von Doussa, supra note 102.
185

polite acknowledgement of customary tenets within an otherwise dominant state

legal system.
More seriously, defendants who have already been sentenced under the
customary system are put in double jeopardy when they face trial in the state
system. There is no easy way around this problem. Taking into account the
traditional punishment on sentencing (or deferring the sentence until traditional
punishment takes place) helps, but does not resolve this issue. Even if agreement
could be reached that certain serious offenses would only be tried and punished in
the state system, communities would likely wish to impose their own sentences
for these offenses as well in order to achieve community reconciliation. It might
be argued that the main purpose of the double jeopardy rule is to avoid the risk of
having punitive measures such as imprisonment, which involves the deprivation
of liberty, imposed twice. Therefore, one would not be in jeopardy if a restorative
order were made in a customary forum, followed by punitive measures in the state
system. However, this ignores the reality that chiefs sometimes order offenders to
serve time in the state prisons to punish certain behavior or to protect them from
retaliation, and that customary remedies, such as compensation, can be heavy and
punitive.
In addition, it might be argued that the use of customary norms, particularly
in criminal proceedings, is discriminatory and violates the principle of equality
before the law. That is, those who do not belong to a traditional group will not
receive the benefit of that groups customary norms. This would include the non-
indigenous majority in developed countries such as the United States, Australia,
New Zealand and Canada, or the non-indigenous minority (e.g., foreigners or
those who belong to a different tribal group) in a developing country. However,
some commentators have persuasively argued that the use of customary norms is
not discriminatory (at least in sentencing) because all people have cultural
backgrounds that may be relevant to sentencing. By taking into account those
circumstances, courts would actually provide equality before the law, rather than
allowing minorities to be held strictly to the standards of the dominant group.118
There is then the question of how judges in the state system can ascertain
the content of a customary law when it may be relevant to a matter before the
court. Judges can refer to a codification of the customary law (which, if in a
statutory form, would require no further proof) or the findings of ascertainment
research. They can also take judicial notice of customs that are well-known.
However, judges are generally not very familiar with customary laws, particularly
those of dubious provenance, and typically have to consult external sources.
These sources may include: books, treatises, or other documents; multi-judge
118
See, for example, Calma (2007), supra note 108, p.76. This would not absolve customary
groups from criminal responsibility as, in order to be protected by law, one also has to be bound
by it. See LRCWA Final Report (2006), supra note 109, p.149.
186

panels; customary assessors (usually community elders); expert witnesses (such

as anthropologists or historians); a specialist court or body (to which a court refers
the case); or third parties who file an amicus brief.119 Some of these will not be
available in an under-resourced society or post-conflict context, nor is there any
guarantee that the information provided will be accurate or free of normative
values imposed by the independent source on what a custom ought to be.
The issue then arises as to whether the information provided by such sources
is to be treated as a matter of law or a matter of fact, assuming that this is not
already clarified by legislation.120 The difference is significant, particularly in
common law countries. When custom is treated as a matter of fact, the custom has
to be pleaded and proved by holding hearings and calling evidence as to what the
custom is and how it relates to the case. By contrast, when custom is treated as a
matter of law, the court is free to accept any of the above sources as conclusive
proof of the content of the custom, without being bound by the rules of
evidence.121 Treating custom as a matter of law therefore makes it less likely that
courts, which tend to favor statutory law, will be able to deny the existence of
custom on technical evidentiary grounds alone. It also means that, if the parties do
not make submissions or lead evidence on a custom, the court can still consider
the custom. In addition, treating custom as a question of law means that the
doctrine of precedent will attach to that custom. Once ascertained, the custom will
therefore have a role in developing the law in subsequent cases, rather than
merely being a case-specific finding of fact.122 It is not surprising that courts have
119
See Converging Currents (2006), supra note 70, pp.197-202, paras. 13.48-13.66, discussing the
merits of these sources.
120
For examples of constitutional and legislative provisions governing proof of custom in the
Pacific region, see Jean G. Zorn and Jennifer Corrin Care, Barava Tru: Judicial Approaches to
the Pleading and Proof of Custom in the South Pacific, 51 International and Comparative Law
Quarterly 3 (2002), 620-621.
121
Converging Currents (2006), supra note 70, p.186, para. 13.6. Though in reality courts tend to
require some sort of evidence, even when treating custom as law, due to the difficulty of
ascertaining custom through the above sources, see ibid., p. 621.
122
Reid Mortensen, A Voyage in Gods Canoe: Law and Religion in Melanesia in Richard
ODair and Andrew Lewis (eds.), Law and Religion Current Legal Issues, vol. 4 (Oxford: Oxford
University Press, 2001), p.521. See also Converging Currents (2006), supra note 70, p.187, para.
13.10. Though this may result in custom being frozen when it has been established as a precedent.
If customary law is wrongly determined, it requires the courts to either refuse to follow that wrong
decision or distinguish it in a subsequent case. See Zorn and Corrin Care (2002), supra note 120,
pp.632-633. While English common law developed the principles of Equity to mitigate the rigors
of stare decisis, customary law has no such equivalent. See Connolly (2005-06), supra note 10, p.
286 citing A.K.P. Kludze, Evolution of the Different Regimes of Customary Law in Ghana
Within the Framework of the Principle of Stare Decisis, in Antony Allott and Gordon R.
Woodman (eds.), Peoples Law and State Law: The Bellagio Papers (1985), pp.97, 99.
187

struggled with this issue, as the judiciary is used to applying known rules to
different facts, rather than having to seek out the rules themselves.123
Despite these problems, adaptation of the state legal system is a useful way
to combine the state and customary legal systems without diminishing the
comparative advantages of either. However, it may be more suited to a common
law system which is inherently able to adapt to new circumstances, and certainly
only when the State and the judiciary are open to cooperating actively with
customary societies, rather than seeking to oppress them. This policy option might
also prove more practicable where there are only a few dominant, or at least
readily identifiable systems, of customary norms that can be adapted in legislation
or in criminal matters without becoming too unwieldy or significantly affecting
parity between cases.
D. Mechanisms to Monitor Human Rights Compliance
The fourth policy option also seeks to harness the benefits of the customary legal
system while mitigating potential human rights violations within that system. It
involves the State utilizing its independent accountability mechanisms, such as
human rights commissions, to monitor the decisions made by customary leaders
so that they are consistent with international and domestic human rights standards.
Under this model, customary dispute resolution remains important in providing
justice, but does so under the oversight of state institutions.
This option has been proposed in Afghanistan.124 The proposal involves
establishing an Alternative Dispute Resolution (ADR) Unit and a Human Rights
Unit alongside existing state judicial institutions. The ADR Unit would be
responsible for identifying appropriate means, such as the customary systems of
shura and jirga, to settle disputes outside the state legal system. This model
proposes limits on the jurisdiction of the systems identified by the ADR Unit, so
that they cannot, for example, handle serious crimes, which would be taken to the
courts. The Human Rights Unit (which would preferably be an extension of the
existing Afghan Independent Human Rights Commission) would review the
outcomes of each case resolved by dispute resolution mechanisms to ensure that
they are compatible with human rights standards and Afghan law. Once approved
by the Human Rights Unit, the decisions would then be formally endorsed and
made legally binding by the courts or other state institutions.
It is too early to assess the long-term prospects of such a system. However,
it does have the major advantage of encouraging constructive and complementary
123
See Zorn and Corrin Care (2002), supra note 120, p.629.
124
See the Afghanistan Human Development Report (2007), supra note 5, pp.126-132. See also
Toomey and Thier, supra note 48.
188

interaction between the state and customary legal systems, while allowing the
latter to function independently.125 The proposal to share authority, while still
cooperating under the broad Afghan legal framework, also provides both systems
with an incentive to cooperate with each other. That said, this model has been
criticized because it has resource assumptions and creates unnecessary
bureaucracy that no developing or transitional economy can afford to finance.126
Another variation on this policy option has been proposed in the context of
Southern Sudan.127 This model proposes using the international and regional
human rights standards ratified by the Republic of Sudan and incorporated into
the Interim Constitution of Southern Sudan128 as the benchmark by which
customary decisions should be measured. This avoids any suggestion of the
foreign imposition of values as it merely assists the Southern Sudanese to
implement their own constitution.129 Customary leaders would then receive
extensive training on those human rights standards so that their decisions might
ultimately conform to those standards. For those decisions that violate
fundamental human rights, there would be a right of appeal to a state court to
correct that decision.
However, as noted earlier, state courts are often not in the best position to
review a decision from a customary authority because of a general contempt for
customary law or lack of familiarity with it, or the fact that there may not be any
written records for an appellate court to review. Accordingly, this model proposes
collateral review, based on practice in the United States, as an alternative to a
125
There has been a similar initiative in Khost Province, Afghanistan. In 2006, the Commission on
Conflict Mediation (CCM) was established to arbitrate conflicts referred to it by the Provincial
Governor. The CCM is composed of six influential elders who work on a voluntary basis to
resolve the disputes using procedures similar to a community jirga. This framework allows
government oversight of case selection while ensuring that decision-making is independent and
based on traditional methods. In its first 18 months, the CCM resolved 18 cases, referred 3 to the
courts, and is processing another 10 cases. See The Liaison Office, Between the Jirga and the
Judge: Alternative Dispute Resolution in Southeastern Afghanistan (Kabul: The Liaison Office,
2009), available at:
<http://www.usip.org/files/file/jirga_ judge.pdf>, accessed 1 December 2010.
126
See the Afghanistan Human Development Report (2007), supra note 5, p.130. The criticism
was specifically in relation to Afghanistan, but is equally valid in other developing and transitional
settings.
127
Pimentel (2009), supra note 17.
128
See the Interim Constitution of Southern Sudan (2005), art. 13(3), which incorporates the rights
enshrined in international treaties ratified by the Republic of Sudan into the Interim Constitution.
See also arts. 13-37, which comprise the Southern Sudanese Bill of Rights. Rule of law
practitioners should check which international conventions a State is party to, and whether any
reservations have been entered by the State which limit the extent of domestic implementation.
129
This is somewhat easier in Southern Sudan because 174(3) of the Interim Constitution states
that courts shall apply customary law subject to the Constitution (and, by extension, its Bill of
Rights). See note 68 and the accompanying text, supra.
189

general right of appeal. That is, state courts would be vested with power to review
and overturn customary decisions not on their merits, but only on the ground that
the procedure, the outcome, or the remedy has violated minimum international or
domestic human rights standards.130 The state courts would defer entirely to
customary leaders on questions of customary law and could only overturn the
decision with reference to fundamental human rights standards. For example, if a
young girl were given in marriage to another family to pay for a wrong committed
against a victim, the customary ruling against the offender would remain
unchanged. However, the remedy of compensatory marriage would be struck
down as a violation of the international and domestic rights of the child.131
Constitutional courts in developed societies undertake a similar review when
granting leave to review certain issues of wider interest to society.
This approach retains the autonomy of customary legal systems, while
imposing a far lighter burden of review on understaffed and dysfunctional state
courts, which need not even determine a new remedy and could simply remand
the case to the customary forum to enter a new remedy.132 However, it assumes
that a third party, such as a human rights commission or NGO, would monitor
customary proceedings to assist aggrieved parties to know when and how to
appeal the initial decision, as well as monitoring the compliance of the customary
forum with the decision of the appellate court. Presumably, the removal of a case
on appeal would have to be carried out on an accelerated basis and with interim
relief, so as not to leave the parties in a legal limbo (which may ignite conflict)
and to avoid the imposition of an irrevocable punishment (such as banishment,
corporal punishment, the death penalty or destruction of property) before the
appeal is heard. The collateral review approach would arguably strengthen
customary legal systems over the long-term, as each reversal on appeal would
educate customary leaders about human rights standards, and each decision on
appeal formally recognizes and legitimizes the customary forum.133
However, these two models for monitoring human rights norms in
customary societies are not without complications. They clearly will not work in
systems where the domestic constitutional and legal framework is itself
inconsistent with international human rights standards.134 Before embarking on a
policy option of this nature, rule of law practitioners would have to address such
domestic issues. There is also the wider question of whether one should attempt to
ameliorate domestic human rights and customary application of those rights,
particularly in a post-conflict or transitional society, which is already
130
Pimentel (2009), supra note 17, pp.22-25. See also Mennen (2007), supra note 20, p.22.
131
Pimentel (2009), supra note 17, p.24.
132
Ibid., pp.23-25.
133
Ibid., p.27.
134
190

experiencing massive instability and changes to its internal social order.135

Communities may suddenly be required to adhere to higher standards than have
ever been applied in that society, including norms which have not even been fully
implemented by developed countries, such as how to respect the rights of
individuals who wish to join a community (refugees, internally displaced people,
or returning diaspora).
Moreover, the reforms expressed in this policy option are clearly imbued
with Western ideas of how such changes might work without going into specific
details and are not necessarily based on operational reality. The litany of cases
that are brought to international and regional human rights bodies demonstrate
that defining which laws and practices violate human rights norms is not an easy
task for either a customary leader or an appellate court. Even if this could be done
easily, international and domestic human rights standards only highlight the
unacceptable content of laws and practices. They do not provide tools to address
violations that arise because of the structure of plural legal orders, such as forum
shopping between the state and customary systems or between customary
systems, by powerful parties.136 The simplicity of this policy option should not
obscure the fact that it is very difficult to implement.
Ensuring compliance of customary legal systems with human rights
standards will naturally involve challenging existing practices and will very likely
encounter significant resistance (if not open hostility) and appeals to cultural
relativism, particularly by those whose interests may be affected. In some cases,
customary practices are based on an entirely different view of an event to that
taken in the Western world, and may not even be seen to offend human rights. In
the case of rape, for example, the compensation given to the victims family is
often based on the violation of societal norms regarding sexual intercourse
between unmarried or related people, and not the violation of a womans physical
integrity.137 A recent study has shown that the concept of human rights has met
with significant resistance in Liberia, where communities consider that it is
undermining the social fabric by facilitating the disobedience of children, giving
135
See Alexander P. Danne, Customary and Indigenous Law in Transitional Post-Conflict States:
A South Sudanese Case Study, 30 Monash University Law Review 2 (2004), 223, arguing that
reform should come from within a society, rather than blind promotion of human rights without
reference to their sustainability. Conversely, a post-conflict or transitional setting is often the
perfect place to introduce change, as people who have lived through conflict are often desperate
for reform and renewal. See Graydon (2005), supra note 30, p.69. This is certainly the case in the
authors experience working in post-conflict countries. Donor interest in funding such changes is
also usually high in the immediate aftermath of conflict, until development fatigue sets in.
136
See ICHRP (2009), supra note 2, p.32.
137
See Forsyth (2002), supra note 27, p.55.
191

unfair protection to perpetrators of crimes, and encouraging people not to work.138

Rule of law practitioners therefore have to be wary of forcing practices
underground by failing to adopt an appropriately nuanced or contextual approach
to introducing human rights.
The issue of cultural relativism could be addressed by emphasizing that both
human rights and culture are dynamic, and are constantly changing and being
redefined by each other. As this process happens, the potential exists to resolve
any tension between them.139 Community attitudes do change. It might also be
addressed by working with local human rights advocates to appeal to the values
that already enjoy social currency in a customary society and to see if there is any
common ground that could lead to the accommodation of human rights.140 This
might involve initially focusing on fundamental rights and not those that may be
more controversial. Creating a dialogue with customary leaders that not only
addresses individual rights, but focuses on group rights that support the autonomy
of customary systems (such as cultural rights and the right to self-determination)
as well as individual duties that are at the core of most customary societies, might
dispel concerns over an undue focus on individual rights.141 Sustainable human
rights advocacy might also target, at least initially, the abuse of custom, which
results in the marginalization of individuals, rather than the tradition or custom
itself.142 Whatever approach is taken, rule of law practitioners must remember that
change is best achieved incrementally.143
138
See Isser (2009), supra note 6, pp.55-57. Though this may speak more to the quality of training
and information provided on what human rights are and what they are not by international
organizations, rather than the concept of human rights itself.
139
Converging Currents (2006), supra note 70, pp.70-71, paras. 5.43-5.47 and pp.168-178, paras.
12.6-12.46, reviewing ways to contextualize human rights.
140
See Graydon (2005), supra note 30, p.69. This might involve, for example, discussing religious
beliefs and how they might influence people who commit domestic violence. See United Nations
Population Fund, Ending Violence Against Women: Programming for Prevention, Protection and
Care (New York: United Nations Population Fund, 2006), p.12 (referred to below as the UNFPA
Report).
141
Converging Currents (2006), supra note 70, pp.219-221, paras. 14.55-14.64.
142
See Danne (2004), supra note 135, p.220. For example, in some societies, female genital
mutilation is the culmination of a traditional rite of passage for girls into adulthood that provides
instruction on proper conduct as a woman. In Kenya, NGOs have developed alternative rites of
passage that respect the tradition, but reject the violence. They have arranged for older women to
act as godmothers to young girls and to take them into seclusion for five days to discuss sexual
and reproductive health and how the community expects young women to behave when they
become adults. See the UNFPA Report (2006), supra note 140, p.30.
143
While working in Southern Sudan, the author heard anecdotally that rule of law practitioners
were working with customary leaders to assist them to change the customary law incrementally
when it violated human rights norms. For example, in one community, men who subjected women
to domestic violence could do so with complete impunity as no punishment was imposed by
customary leaders. However, the intervention sought to persuade those customary leaders to
192

A further question is whether human rights should apply to the decisions of

customary leaders at all since they are decisions rendered by private individuals
(albeit those who exercise significant governance functions and wield extensive
power) in relation to other private individual parties who bring their disputes to
customary fora. Traditionally, human rights only apply vertically, that is between
the State and the individual, and not horizontally between individuals. This is
because, historically, rights were developed as a means of shielding the individual
from the power of the State.144 However, this problem can easily be resolved if
customary leaders are regarded as performing a public function and are therefore
bound by human rights provisions in the same way as the State.145
This policy option may be a useful means of maintaining the
decentralization of customary dispute resolution while eliminating its
despotism.146 It will likely be an appropriate policy in cases where the state legal
system has been so destroyed by conflict or corruption that it is incapable of
dispensing justice, and the only viable option is to use the customary system. As
the Afghanistan proposal recognizes, this policy option does not resolve
jurisdictional issues as to what types of cases should be heard by state and
customary fora respectively and may need to be combined with additional
regulatory reforms.
E. Regulation of Customary Legal Systems
The fifth policy option involves the State enacting legislation to regulate the
operation and procedural aspects of customary legal systems. Just as the previous
policy option, it foresees the continued independent existence of customary legal
systems, but would subject customary systems to oversight by the State on a wide
range of matters including observance of human rights standards. This concept is
not unfamiliar to governments in the developed world. Recent years have seen
increased privatization and the rise of non-state entities carrying out the
traditional functions of government, such as private security companies assisting
impose penalties on the perpetrators in limited cases, such as when a weapon was used against the
woman. In this way, it is hoped to gradually extend punishment to all cases of domestic violence.
See also Wojkowska (2006), supra note 15, p.32 for a similar example in Somalia (dialogue
leading to modification of the Xeer).
144
See Jennifer Corrin, From Horizontal and Vertical to Lateral: Extending the Effect of Human
Rights in Post Colonial Legal Systems of the South Pacific, 58 International and Comparative Law
Quarterly 1 (2009), 31.
145
Ibid., pp.67-69.
146
See Odinkalu (2005), supra note 24, p.6, citing Mahmood Mamdani, Citizens and Subject:
Contemporary Africa and the Legacy of Late Colonialism (1996).
193

in military interventions and private prison institutions, subject to government

oversight and regulation.
The most common form of state regulation is to introduce territorial,
personal, or subject-matter jurisdictional limits on customary legal systems that
seek to define exactly which matters may be heard by customary fora and which
cases must be taken directly to the state courts. Without such defined
jurisdictional limits, customary leaders often hear cases that are already before a
state court.147 Regulation in this area might include limitations on the types (e.g.,
family matters) or severity (e.g., minor crimes)148 of cases that customary fora can
hear, or the remedy (e.g., the amount of compensation) they can apply.149 The aim
of such regulation would be to refine operational details, thereby reducing
jurisdictional confusion and addressing any impunity or lack of accountability
inherent in such confusion. State regulation might also include allowing appeals
to be brought from customary fora to the state courts, which raises the issues
discussed earlier about proof of custom in state courts. Regulation aimed at
reducing the possibility for opportunistic forum shopping between the two
systems, particularly by elites who have the information and resources to do so,150
would also be necessary. This might include a requirement that the parties exhaust
their remedies in the customary legal system before taking cases to the state
system.151
Regulation might also take other forms, including clarifying how authority
is bestowed on customary leaders: whether they are elected by the community,
take the position as a hereditary right, or are appointed by the State; how they are
paid (by the State, the parties, or not at all); and how they behave (through a code
147
Nyamu-Musembi (2003), supra note 47, p.24, para. 5.18.
148
Though caution is needed. Minor criminal or civil matters, such as areas of family law (divorce
or maintenance) or domestic violence, often have serious human rights consequences. See ICHRP
(2009), supra note 2, p.32.
149
See ibid., p.91, giving country-specific examples of restrictions on the types and severity of
cases customary fora can hear and on the remedies they can award. Such regulation was
recommended by communities in Cambodia to cap the fines that can be awarded by customary
leaders. See Backstrom (2007), supra note 43, p.81, para. 11.7.
150
A typical example is land disputes. Wealthy people are able to take property disputes to the
state system to enjoy the benefits of statutory property law, while using customary law
mechanisms to grab ancestral land. See Odinkalu (2005), supra note 24, p.5.
151
See Isser (2009), supra note 6, p.91. This was also the approach taken in Vanuatu: see In the
Matter of the Nagol Jump; Assal & Vatu v. The Council of Chiefs of Santo (1992) 2 Van LR 545,
where DImcourt C.J. held that the question of whether a sacred land dive could be held on a
neighboring island should first be determined by the chiefs before a claim could be made in the
state courts. Alternatively, customary fora might be given exclusive jurisdiction in some matters,
with no right of appeal to the state system. This would prevent forum shopping and double
jeopardy, though it may leave abuses of power unchecked. See Forsyth (2009), supra note 13,
p.216.
194

of conduct).152 The State could also define the territory and constituency of the
customary society itself by delineating village boundaries. So too, the
adjudicatory process itself could be regulated. For example, the State might ban
certain procedures or practices. It might mandate that women serve as customary
leaders. It might even require that records be kept of the proceedings or that legal
representation be allowed. Regulation might also be needed to introduce the
requirements of natural justice if the customary legal system is using the coercive
power of the State to enforce its decisions.153 Though many of these regulatory
measures would be introduced by legislation or policy, the State could also seek
to influence the operation of customary legal systems more subtly by strategic
allocation of the state budget to those systems.
This policy option works well in ensuring that customary legal systems
operate within the constitutional framework of the State, while preserving the
independence and benefits of the customary system.154 However, it is easy for the
State to cross the line between supervising the customary legal system on the one
hand, and over-regulating and undermining its legitimacy on the other.
States do not generally strike this balance well. For example, state policy in
Liberia forbids customary leaders from handling matters involving serious crimes.
However, a recent study found that there is broad consensus in the community
that chiefs are better equipped to handle all but the most heinous forms of murder,
rape, and violence.155 These jurisdictional limitations are considered by Liberians
to be promoting impunity and causing chronic dissatisfaction among victims.156
The study suggests that a more nuanced approach to defining jurisdictional
limitations be taken, including developing criteria to determine when crimes can
or cannot be adjudicated by customary authorities.157 In addition, in 2006 the
Liberian Ministry of Internal Affairs announced that it would revoke the licenses
of customary officials who practice trial by ordeal by sassywood. The ban has
failed to discredit the practice and is perceived to be contributing to a rise in crime
and instability.158 The study found that, in imposing the ban, the State not only
152
IDLO (2010), supra note 3, p.11. However, state regulation of the appointment and payment of
customary leaders is often controversial because it has the real potential to diminish the
independence and legitimacy of customary legal systems. Similar issues arose when local
government legislation was drafted in Southern Sudan and caused great concern among
communities.
153
See Forsyth (2009), supra note 13, pp.259-260.
154
Ibid., p.218.
155
Isser (2009), supra note 6, p.54.
156
Ibid., p.55.
157
Ibid., p.91. The suggested criteria include whether the parties prefer customary adjudication,
whether a third party is affected, and whether there is a political or ethnic dimension to the crime.
158
Ibid., p.5.
195

outlawed harmful aspects of sassywood, but also the benign aspects of the
practice, which are integral to local culture.159
The type and amount of regulation required is dictated by the degree of
interaction between both systems. Regulation of customary legal systems in some
form will usually be needed unless the customary system operates highly
independently of the State, which might be the case where the State turns a blind
eye to the customary system or tacitly accepts its existence.160 However, in most
plural societies, there is already a degree of informal cooperation occurring
between the State and customary societies, such as referral of cases between the
systems, which may require more formal regulation.161 Regulation can be a useful
policy tool, provided that it is used with restraint and only where intervention is
strictly necessary to ensure that customary legal systems can operate. When
feasible, self-regulation should be encouraged in customary societies.
This paper has discussed several policy options available to rule of law
practitioners when advising governments on appropriate means of interacting with
customary legal systems, whether on a substantive, procedural, or institutional
level. When considering each of these, it is important to bear in mind that there is
always an exception to the rule: that is, policy options that might be thought to
diminish customary law in one context may not do so in every context. The
analysis is also not intended to be exhaustive as there are many variations of
interventions within each policy option, as well as creative new policies that may
be developed in programs seeking to foster the rule of law. The likelihood of
success of any of these options can be enhanced by the adoption of good practices
by rule of law practitioners as they work toward building constructive
relationships between both systems.
IV. GOOD PRACTICES
It is not the intention of this paper to examine specific rule of law initiatives that
might be undertaken in conjunction with the above policy options.162 That
159
Ibid. pp.57-65.
160
Forsyth (2009), supra note 13, p.207, giving the examples of East Timor, Lesotho, Malawi,
Zambia, Mozambique, Kiribati, Ghana, Nigeria, Solomon Islands and Vanuatu.
161
Perhaps with the assistance of a registrar outside the state system who would direct the transfer
of cases between state and customary fora. See South African Law Commission, Customary Law:
Report on Traditional Courts and the Judicial Function of Traditional Leaders, Project 90
(Pretoria: South African Law Commission, 2003), p.32.
162
Such as legal literacy and human rights training, dialogue with community-based leaders, and
legal empowerment initiatives, etc. See, for example, Leonardi (2010), supra note 23, pp.85-88
which proposes a number of reform priorities in the South Sudanese context such as annual chiefs
196

endeavor, as valuable as it is, has been carried out elsewhere, usually in a country-
specific context.163 Rather, this Part briefly considers general approaches that rule
of law practitioners might take to meet some of the challenges of working in
legally plural societies164 and in building complementary customary and state
legal systems.
A. Programming Based on Sound Research
It almost goes without saying that, before designing a program of intervention that
involves state and customary legal systems, practitioners must first understand
what they are dealing with by undertaking thorough research on both systems.
Yet, this is generally not well done in the inception phase of rule of law missions
because it takes time and effort when circumstances often call for a more
immediate humanitarian and legal response. Even when attempts are made, there
is sometimes a time lag in fast-moving environments between the research and
actual design and implementation of a program, which results in the use of dated
information. Rule of law missions should be sure to update initial findings when
this is the case.
The research should candidly appraise matters such as the historical context
of statutory and customary law; their key features (values, users, leadership,
principal norms applied, degree of compliance with human rights standards, and
perceptions of justice); the source of funding (if any); existing or previous donor
assistance (what has been tried and worked, or failed), and the incentives and
meetings; legal advice and information dissemination; guidance for judges on local social and
economic systems; police and prison reform etc.
163
See, for example, Thomas Barfield, Neamat Nojumi and J. Alexander Thier, The Clash of Two
Goods: State and Non-State Dispute Resolution in Afghanistan (Washington DC: United States
Institute of Peace, undated) pp.25-28; IDLO (2010), supra note 3, pp.12-16, proposing initiatives
of customary legal empowerment; Mennen (2007), supra note 20, pp.16-24; PRI (2000), supra
note 36, pp.129-169; Kristina Thorne, Rule of Law Through Imperfect Bodies? The Informal
Justice Systems of Burundi and Somalia (Geneva: Centre for Humanitarian Dialogue, 2005);
Wojkowska (2006), supra note 15, pp.30-44. Some commentators have gone further in suggesting
potential indicators for monitoring and evaluating initiatives that work with state and customary
legal systems. See, for example, the DFID Briefing (2004), supra note 60, pp.15-16; Wojkowska
(2006), supra note 15, pp.45-46.
164
Forsyth sets out a broad methodology for doing legal pluralism from analysis of both systems
to developing a method of progressively implementing and evaluating changes. See Forsyth
(2009), supra note 13, pp.249-264. DFID has also developed a checklist for engaging customary
legal systems which is based on criteria such as: the need for intervention; its contribution to
poverty reduction; the intended impact on efficiency, fairness, accountability and inclusiveness;
and the existence of potential entry points. See DFID Briefing (2004), supra note 60, p.13.
197

disincentives for reform.165 Ideally, this would be conducted by a multi-

disciplinary team of lawyers, anthropologists, historians, statisticians, donor
representatives, local experts, etc.
The data gathered on both systems can be used for a variety of purposes in
program design, including: institutional appraisal (the range of customary
systems and their relationship with the State); dispelling myths about both
systems; monitoring and evaluation (obtaining baseline data to measure the
performance of both systems over the long-term); building local capacity and
awareness-raising (helping local researchers and government decision-makers to
be aware of issues affecting both systems), and risk assessment (recognizing the
legacies of colonization,166 as well as factors which might make donors hesitant to
fund the project).167 One goal of research is to present empirically both the state
and customary legal systems as they really are, rather than to compare an
idealized version of either system with the other.168 Another goal is to ascertain
local perceptions of what it means to access justice. Justice and the rule of law
mean different things to different communities: to some, it might involve claiming
rights to use land or vindicating rights to inheritance, while to others it might be
ensuring that the perpetrators of serious crimes are held accountable.
Working with and understanding customary law is not the sole province of
anthropologists or customary law experts. Customary law is a cross-cutting theme
affecting all components of a comprehensive rule of law program. The research
must be shared with every member of the team that will implement the project,
whether they are based in the capital city or regional areas, so that a coherent
165
DFID Briefing (2004), supra note 60, pp.8-11. See also Forsyth (2009), supra note 13, pp.250-
254.
166
Colonization affected customary legal systems in several ways, including by: (a) colonial rules
which limited the impact of customary law or outlawed it; (b) relegation of customary law to a
second-class status as the municipal law of villages within larger political systems, rather than the
highest law of sovereign political entities; (c) jurisdictional limitation to certain kinds of parties
and disputes; (d) creating the state system to which people could turn if not satisfied with
customary law, and (e) the example of the state system itself, upon which customary norms and
dispute resolution began to model themselves. See Jennifer Corrin Care and Jean G. Zorn,
Legislating Pluralism: Statutory Developments in Melanesian Customary Law, 46 Journal of
Legal Pluralism and Unofficial Law (2001), 51, note 3.
167
168
See Isser (2009), supra note 6, p.39. There are analytical frameworks to assist in assessing both
the state and customary legal systems. For example, the United Nations Office on Drugs and
Crime has developed assessment toolkits for the state legal system, available at:
<http://www.unodc.org>. A framework has also been developed to assess plural legal systems and
the extent to which the state and customary legal systems already protect human rights. See
ICHRP (2009), supra note 2, pp.153-156.
198

strategy can be developed on how to engage the customary legal system.169 This
includes specialists working with the judiciary, prosecutors, law enforcement, and
prisons, as well as subject-matter experts in training, legislative drafting and
parliamentary standards, constitutional reform, land policy, local government,
gender mainstreaming, juvenile justice, transitional justice, and monitoring and
evaluation. In presenting the results of research, it may be helpful to utilize the
legal terminology (at least the most common terms) of the group whose
customary law has been studied so that foreign practitioners more rapidly
internalize customary law concepts and are less inclined to impose their own
inaccurate concepts.170 The research should also be shared with local counterparts
in both the state and customary legal systems, and ideally it should be part of a
national dialogue to determine the best policy options for engaging both systems.
B. Identifying Key Stakeholders, Partners and Potential Spoilers
The research can also be used to identify trusted local leaders to work with, both
in government and in the customary system, as well as those who are not
recognized leaders but hold de facto power within a community. This could be a
long list, as customary justice is often dispensed by a variety of groups, some of
which are more readily identifiable than others. They include chiefs and elders,
NGOs,171 religious courts, vigilante or mob justice groups, neighborhood dispute
resolution groups, private police forces and armies, and even government
officials.172
It is also important to identify which individuals and groups are likely to
resist efforts to build complementary customary and state legal systems.
Customary leaders may be concerned that initiatives will encourage greater use of
the state legal system and a corresponding loss in their authority and power base.
Conversely, government ministers, judges, and lawyers may actively oppose
customary legal systems for a variety of reasons,173 which rule of law practitioners
169
Personnel implementing the U.S. State Departments Comprehensive Criminal Justice Sector
Development Program in Southern Sudan were also given pre-deployment briefings on Sudanese
customary legal systems by a recognized expert in that field.
170
Fatou K. Camara, Effective Techniques for Teaching About Other Cultures and Legal Systems
Teaching African Customary Law, undated, p.2,
available at:
<http://www.ialsnet.org/meetings/assembly/FatouKineCamara.pdf>, accessed 1 December 2010.
171
Such as the NGO-facilitated Shalish in Bangladesh. See Golub (2003), supra note 35, pp.10-
12.
172
See Schrf (2003), supra note 14, pp.4-5.
173
This includes concern about human rights abuses in customary societies; misconceptions about
unwritten law and less formal procedures as a result of being educated in statutory law; reluctance
199

need to understand and manage. In the authors experience, some of these

concerns can be assuaged by dialogue and explanation of the purpose behind
programs. It also helps to highlight the work that will be done to strengthen both
systems, particularly aspects of the systems that are of concern to those who work
within them. For example, in Malawi, the Law Society was understandably more
willing to support the involvement of paralegals in informal dispute resolution
(which would place them in direct competition with lawyers to provide such
services) when amendments were proposed to legislation governing the legal
profession to set fair fees for the private bar. Of course, there will always be
individuals and groups who do not wish to cooperate with reform efforts, and
those wishes should be respected.
This stakeholder analysis also allows rule of law practitioners to identify and
approach individuals and groups who already see the need to engage customary
legal systems, such as lower level magistrates, provincial administrators, or those
involved in community-based initiatives.174 Sometimes gaining their support can
be as simple as building relationships and showing respect for and interest in their
work over a shared meal or cup of tea. Donors can also play a part by reassuring
both state and customary authorities that they will continue to receive support and
funding, and by following up with prompt delivery of promises. However, the
allocation of funding between both systems will always be a sensitive issue. It is
not good practice for donors to put large amounts of money into customary
systems because they work well on limited budgets. Financial rewards can create
perverse incentives for customary leaders and undermine the very aspects of
customary dispute resolution that are legitimate.175 By contrast, the state legal
system typically has substantial needs in terms of infrastructure, equipment, and
personnel.
C. Long-Term Vision and Sustainability
As with any development activity, building complementary customary and state

legal systems is an activity that will take many years to accomplish.176 The
to acknowledge the weaknesses of the state legal system; perceptions that assistance to the
customary legal system jeopardizes modernization and foreign investment; and, most commonly,
apprehension that customary dispute resolution threatens the already meager incomes of state
officials. See DFID Briefing (2004), supra note 60, pp.5-6.
174
Ibid.
175
See Dempsey and Coburn (2010), supra note 23, p.5.
176
A realistic timetable for recreating a functioning criminal justice system with formal courts,
trained judges, and a retrained police force following armed conflict has been estimated at 20
years. See Kirsti Samuels, Rule of Law Reform in Post-Conflict Countries: Operational Initiatives
and Lessons Learnt, Paper No. 37 (Washington DC: World Bank Social Development
200

attitudinal changes that must accompany such reform are likely to be generational.
While it is possible to achieve some shorter term wins, such as successful human
rights education programs or convening of councils between customary leaders to
discuss critical issues, real structural change requires a long-term vision, which
should be reflected in rule of law programming.
However, it is not realistic to expect that donors will continue to fund such
reforms in perpetuity, particularly when there are so many other worthy demands
on limited donor resources worldwide. Rule of law practitioners must endeavor to
make their engagement of state and customary legal systems sustainable so that
reform will continue long after the donor presence in a country has ceased. This
requires practitioners to adopt the pragmatic approach referred to earlier of
working with available resources (however limited) and using them in an
innovative way to encourage reform. When working with plural societies this may
mean, for example, cultivating relationships with people who have roles in both
the state and customary legal systems, such as chiefs who are also police officers,
and who can carry on reform efforts by acting as a bridge between the two
systems.177 In reforms of this nature, it is important that locals lead the work and
be seen as acting in the best interests of the community (rather than foreign
donors).178 This is one way of achieving that end.
Similarly, rule of law practitioners should seek out examples of
communities that have already successfully implemented initiatives that build a
constructive relationship with the State, whether with external support or not. This
might include changes communities have made to their internal structure to allow
women to have a greater role in decision-making and communal life, or where
harsh physical punishment or banishment is being phased out because it no longer
meets the needs of the community.179 Such changes build a constructive
relationship with the state legal system because they assist the State to meet its
domestic and international human rights obligations. These examples should be
used as role models for other communities, thus ensuring that indigenous and
sustainable solutions are used, rather than introduced ideas.180 Of course, the
extent to which this is possible may depend on the existence of a settled and
benign state system.
Moreover, in states with multiple legal, religious, or cultural systems that
exist independently of the State, such as tribal and religious systems, lessons can
be drawn from the relationship between these pluralities. For example, in Vanuatu
Department, Conflict Prevention and Reconstruction, 2006), p.18. Presumably, this process would
be longer when the reform involves developing a complementary customary legal system as well.
177
See Forsyth (2009), supra note 13, p.254.
178
Dempsey and Coburn (2010), supra note 23, p.5.
179
See Forsyth (2009), supra note 13, pp.257-258. See also note 143, supra.
180
Ibid.
201

the relationship between Christianity and Kastom (customary law) has changed
from mutual hostility to mutual tolerance and acceptance.181 Both systems have
been allowed to develop in such a way that elements of each are found in the
other, and people are able to move between the two, taking the benefits that each
is able to provide, without the need to either confront or reconcile the fundamental
differences of approach of each system.182 Rather than needing to strengthen the
central government to manage diversity, this suggests that different systems can
co-exist, at least in the short-term, without subsuming each other.
One final warning. Working with state and customary legal systems is
complicated, difficult, and fraught with setbacks. However, this must not deter
rule of law practitioners from pressing on with reforms that build
complementarity between the two systems. The perfect must not be the enemy of
the good.183
V. CONCLUSION
The transition from legal positivism to legal pluralism is complete in todays rule
of law missions. Customary legal systems are now rightly seen as an integral
element of a functioning justice system, and there are policy options and good
practices to assist rule of law practitioners in working toward this goal.
This paper came from an intense period of thought by the author while in
Southern Sudan that questioned the unspoken endgame of working with
customary legal systems and what it is that rule of law reforms seek to achieve.
While there is no doubt that we are working toward building complementary
customary and state legal systems, are we doing this with the intention that both
systems will develop in parallel until they merge? Or do we consider that
customary legal systems should and will always remain a separate but equal
means of dispensing justice in plural societies? If the latter, are we prepared to
accept a source of law-making that does not fit within the three arms of
government, in effect becoming a fourth (albeit fragmented) source of power
equal and not subordinated to the other three?184 If so, will this perpetuate the
absence of state institutions, and does this matter? Would there be any
circumstances in which we would accept this fourth pillar serving as a check and
balance on the other three, for example, by measuring a law against customary
181
Ibid., pp.19-20.
182
Ibid. However, in Vanuatu this may be easier because Church is more pervasive and present
in outlying villages and islands than the State.
183
This quote - roughly translated and adapted from the original French Le mieux est lennemi du
bien - is attributed to Voltaire, La Bgueule, Conte Morale (1772).
184
See von Doussa, supra note 102.
202

values?185 The sobering reality in most plural legal systems is that there simply
may be no solution that will resolve this tension between the centralized state
legal system and decentralized customary societies.
In the meantime, rule of law practitioners must ensure that reforms respect
and uphold the right of customary societies to self-determination, always mindful
of the importance that traditional values hold for those they govern:
Customary law is what I am; the essence of an Aboriginal person is

customary law. It controls you completely and wholly, not in an
imprisoned way but in the way that it cares for you completely and that
means holistically.186
~ Rosalie Kunoth-Monks
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208

Dispensing Elusive Justice: The Kenyan Judiciary Amongst Pastoralist Societies Note
95
Dispensing Elusive Justice:

The Kenyan Judiciary Amongst Pastoralist
Societies
Tanja Chopra*
Justice sector reform and access to justice initiatives in developing countries are
often pre-occupied with addressing challenges related to proximity of judicial in-
stitutions, costs of filing cases, and technical deficiencies in the system. One of the
major obstacles, however, for a well-functioning rule of law can be paradigmatic
contradictions between formal laws, judicial processes and local understandings of
justice. In the arid north of Kenya, for example, pastoralist societies adhere to
their own norms delivering justice. Indigenous means of conflict resolution have
proven to genuinely reconcile and pacify society, even in serious criminal offences.
Problematic is that local socio-political realities are much stronger than state insti-
tutions. Government authorities have been compelled to work with local solutions
in order to pacify the region. This sounds an alarm for the formal justice sector of
the failure of its main mission the maintenance of peace in society. If laws and
judicial processes do not become increasingly responsive to socio-cultural con-
texts, justice sector institutions run risk of rendering themselves redundant.
Introduction
In most development contexts, formal justice sector institutions and laws were
introduced by European colonial powers. Many decades later, most of them still
barely reflect the norms and values of the societies they serve. As a result, local
communities may not perceive the official systems as just and laws and judicial
processes lack the ability to pacify warring parties. For government and develop-
ment partners it is therefore important to acknowledge that while the continua-
tion of technical judicial reform is important, laws and legal processes need to
increasingly respond to local concepts and realities in order for reform activities
to be more effective.
* The author is Coordinator of the World Banks Justice for the Poor Program in Kenya. This
article draws on research undertaken on Reconciling Society and the Judiciary in Northern Kenya
with the World Bank and the Legal Resource Foundation of Kenya.
Hague Journal on the Rule of Law, 2 : 95110, 2010

2010 T.M.C.ASSER PRESS and Contributors doi:10.1017/S1876404510100050
96 Tanja Chopra HJRL 2 (2010)
One example that demonstrates this dilemma particularly well is the pastoralist
societies that populate the arid lands of Kenya. Following a long history of
marginalization, severe draughts and lack of development are a cause for contin-
ued economic hardship. Accordingly, conflicts over pasture, water sources and
cattle rustling are common. Kenyas judiciary should be the primary state organ
that contains and resolves disputes across the country. Through the application of
official laws, it ought to provide a means for individuals to redress their griev-
ances. The trial of criminal cases in the public interest should be a deterrent for
criminal retaliation and self-help, and aid in establishing peace within and between
communities. However, Kenyas judiciary has served only modestly to pacify the
conflict-ridden pastoralist communities. One of the prevalent reasons is that offi-
cial laws and judicial processes many of which are inherited from British colo-
nial administration largely fail to respond to the particular socio-cultural, economic
and political realities of pastoralist communities. Their understanding of what
constitutes a crime or a transgression of rules, how violations should be treated,
and who has the authority to dispense justice differ significantly from the norms
on which the formal law is based.
Consequently, the number of cases filed at the courts in the arid lands districts
is arguably1 low and even serious criminal cases are dealt with outside the courts.
In the eyes of local communities, the formal system provides unattractive means
of recourse for redress. With an increase in conflicts and disorder in the arid lands,
and in the absence of formal responses, peace initiatives began to develop in the
early 1990s. In contrast to the official justice system, they responded to local con-
cepts of justice and integrated local stakeholders in the determination of solu-
tions. The initiatives have proven efficient in ending conflicts and in providing
stability in the region and have thus been taken up by the executive powers of the
country.
The result is the emergence of parallel legal regimes in the arid lands: conflict
management activities that follow the logic of local value systems, and the official
justice system that is based on a modern legal paradigm. Their co-existence is a
challenge to the idea of a unified national legal system. By lacking responses to
issues that inherently concern societies, the official justice system runs risk of
rendering itself superfluous.
1 There are no surveys available that assessed the arid lands districts in particular. Magistrates
deployed in the arid lands, however, suggest that the number of cases filed in their courts is consid-
erably lower than in other areas of Kenya.
Dispensing Elusive Justice: The Kenyan Judiciary Amongst Pastoralist Societies 97
Shortcomings of the Judiciary

Kenyas arid lands populations have subsisted on the periphery of governance
and development assistance for many years.2 The state has little impact and infor-
mal institutions address most of the grievances and conflicts within and between
communities. Intra-communal grievances, such as property and domestic disputes,
or small stock thefts, are dealt with by the family elders. If more than one family is
involved, respected community elders, the assistant chief or the chief will assume
responsibility.3 The chiefs and assistant chiefs are civil servants, employed by the
Provincial Administration, but they originate from the communities they serve.
The Chiefs Authority Act mandates chiefs to maintain law and order in their
respective locations.4 Chiefs typically work hand-in-hand with community elders
and apply local means of conflict resolution in order to maintain stability and
peace.5 Members of a community basically share common ideas that define trans-
gression of the rules and that prescribe how peaceful relations can be restored.
In contrast, inter-communal and inter-ethnic conflicts are a more serious chal-
lenge to the maintenance of peaceful relations as different socio-cultural sys-
tems may be involved. Droughts and the ensuing scarcity of resources, as well as
political skirmishes are the causes for a considerable number of conflicts and
crimes in the arid lands. The competition over natural resources poses major chal-
lenges for communities who have to co-exist in the same area. Communities have
their own systems that regulate the usage of pasture and water sources; but these
may differ between groups. Given the considerable number of ethnic groups in
the arid lands, such as the Somalis, Borana, Samburu, Turkana, Pokot, Marakwet
and others, disagreements over usage of natural resources are not uncommon.
These can lead to violent clashes at water points or to a series of revenge killings
after an initial murder has taken place. Loss of livestock after a drought can lead to
wide-ranging cattle rustling as communities endeavour to recover lost assets. Ad-
ditionally, cattle rustling is an inherent feature of the socio-cultural systems of
some societies.6 Taking the cattle of another group serves to prove manhood,
2 See, for example, OXFAM, Delivering the Agenda. Addressing chronic under-development
in Kenyas Arid Lands, Oxfam Briefing Papers 88 (2006).
3 Robinson Ocharo and Beneah Mutotso, Report on Community Justice Systems Study in Kenya:
Case Studies of Communities in Wajir, Isiolo, Laikipia, Meru North, Turkana Districts and Nairobi
(Mukuru and Kibera Slums). Final Report, The Kenya Section International Commission of Jurists
(2003).
4 Laws of Kenya, Cap 128 Chiefs Authority, Sec. 6.
5 See for more detail, Bonita Ayuko and Tanja Chopra, The Illusion of Inclusion. Womens
Access to Rights in Northern Kenya. Justice for the Poor and The Legal Resource Foundation,
Research Paper (2008).
6 Isabella Masinde, et al., Indigenous Democracy. Traditional Conflict Resolution Mechanisms,
ITDG-EA (2004).
increases the social status of a man, and enables a young man to find a wife. It is
considered an important activity in a persons life cycle and therefore plays a cru-
cial role in the maintenance of social order. Conflicts and cattle rustling in the arid
lands have escalated with easy access to firearms,7 which are traded across the
adjacent borders of neighbouring war-torn countries. The ready availability of
firearms has permitted cattle rustling on a larger scale with increasingly fatal out-
comes8 and fostered the escalation of highway banditry.
The Constitution of the Republic of Kenya defines the judiciary as the princi-
pal institution for dispensing justice and the maintenance of law and order. How-
ever, judicial institutions and personnel in the arid lands of Kenya face significant
constraints. The number of courts in the vast area is considerably small. There are
no High Courts (which have jurisdiction over capital offences and which hear
appeals) located directly in arid lands districts. Only Magistrate Courts operate in
different district capitals.9 Only very few roads have tarmac surfaces; most are
dirt roads and only accessible by trucks or four wheel drive vehicles. Many pasture
areas where pastoralists graze their livestock are not even accessible by road. A
journey to a district capital may require a day or two on the back of a truck.10 For
witnesses or complainants in a criminal case, there are few incentives to take on
the burden of such a journey.
Many are also limited by their economic situation as they cannot afford the
costs of transport, lodging and food in town, which are necessary in order to
attend court. Frequent adjournment of cases renders this even more expensive.
Additionally, complainants filing a case at court will need to pay fees around Ksh700
(about USD 12). These costs particularly hinder poorer social groups to make use
of the court. Women may, for example, already face difficulties in leaving their
homestead to travel to a court. Additionally, challenges in finding the funds to pay
for the costs related to filing a case may prevent them from ever seeking official
justice.11
Some of the Kadhis courts have managed to address issues of distance and cost.
Kadhis courts are usually co-located with magistrates in areas with Muslim popula-
7 According to the national assessment on the small arms situation in Kenya, there appears to
be a higher number of small arms in the North Eastern Province. See Office of the President
(Provincial Administration and Internal Security), Kenya National Action Plan For Arms Control and
Management, Nairobi, 2006, p. 17.
8 Ibid., p. 30.
9 Although Magistrate Courts constitute the lowest level of the judiciary, countrywide statistics
indicate that they cover about 90% of the cases before the judiciary. International Commission of
Jurists, Kenya. Judicial Independence, Corruption and Reform, April (2005), p. 35.
10 For example, someone from Isiolos remote towns of Modogashe or Sericho would need to
travel ca. 250 km to reach the nearest court in Isiolo town.

11 Interview with staff of NGO, arid lands, September 2007.
tions; they have jurisdiction over civil cases, and they rule on the basis of Sharia
law.12 Relying on a religious network, some courts have appointed local Imams, or
other Muslim scholars in the remote areas, as first point of contact for complain-
ants. They are not part of the official structure, but they report to the Kadhi and
can refer cases to him. They play a vibrant role in their community and establish
important links between the populations of remote areas and the Kadhis courts.
The use of mobile courts for the judiciary to reach remote areas is still rare, but
has been taken up as a reform initiative by the judiciary. Some magistrates travel
with translators and prosecutors to selected communities on a regular basis to
hold their courts. We started the mobile courts because we felt there were cases
that should be dealt with by us.13 One magistrate feels that his mobile courts have
a positive effect in bringing official institutions closer to the people. We try to
show them that we dont just arrest people.14 In his opinion, they contribute to
public outreach by the judiciary and help increase public understanding of the law.
Another factor that inhibits complainants from turning to the official system is
the long duration of cases. Although magistrates in the arid lands do not report a
major backlog of cases, the time it takes to receive a judgment is still too long for
the parties in conflict. Even waiting times of a few weeks may already encourage
the preparation of revenge actions, as the situation seems unresolved in the eyes
of the parties. Ceasefires can be arranged between the different sides to create
space for informal negotiations, but it is unlikely that people would adhere to such
arrangements in order to wait for a court decision. Furthermore, long waiting
times are a concern for complainants and witnesses: The court takes long even
for simple things. You have to come back after three weeks, again and again. The
courts are a bother, because we have other things to do.15
The work environment of the magistrate is also not conducive to efficiency.
Magistrates originate from different areas of Kenya. They are usually re-deployed
to different regions every four years or at even shorter intervals. Each time they
are moved to a new area, they have to re-adjust to a different socio-cultural con-
text in order to provide equitable access to justice. In addition, the space and
conditions of some court buildings in the arid lands are not favourable for the
magistrates to perform their duty. Though a positive development, the posting of
Kenyas law reports online does not help those magistrates in the arid lands when
they require access to judgments, as almost none of them are connected to the
internet nor do they have adequate electricity supply to start with.16
12 See Chapter 11, Kadhis Courts Act.

13 Interview with Magistrate, arid lands, November 2007.
14 Idem.
15 Interview with Sheik, arid lands, September 2007.
16 See http://www.kenyalaw.org/kenyalaw/klr_app/frames.ph.
Other shortcomings in the justice sector hinder the dispensation of justice.

Defence lawyers, for example, are only provided free of charge for capital
charges, and then usually only for murder but not robbery with violence (for which
the Penal Code also allows capital punishment). The population has little under-
standing of formal laws and procedures, most cannot afford a defence lawyer,
and there is barely any legal aid provided. Charged with criminal cases, the alleged
perpetrator usually has to defend himself. In addition to the lack of defence law-
yers, there are a limited number of public prosecutors. To bridge this gap, police
inspectors have received a short period of training to enable them to act as public
prosecutors. Offenders who can afford a lawyer are often acquitted because a
police-run prosecution is less-equipped to win the case. Seeing criminals go free
does not foster the populations trust in the official justice system. The number of
practicing lawyers in the region is small due to lack of demand. Without legal
advice, it is nearly impossible for a citizen to file a case at court.
The work of the judiciary is also impeded by the challenges the police face in
the arid lands. In contrast to the courts, a police presence is more widespread.
Even the lower administrative sections, such as the divisions, have a police station
manned with officers of the Kenya Police, the lowest level, the locations, have a
presence of the Administrative Police.17 However, these outposts are often
equipped with one or no vehicle, and can therefore not respond rapidly to crimes
or violent conflicts. In addition, the police receive little cooperation from the local
population. Police officers claimed that the detention of offenders and the collec-
tion of witness statements are a prime challenge. It is difficult for them to con-
vince the local communities of the rationale of witness statements, that the court
will actually solve their disputes and that the perpetrator will be punished. The
police are at the frontline in enforcing official laws, but they are often simply over-
whelmed by social realities.
General accusations of widespread bribery in the courts do not encourage
peoples trust in the judiciary. In the Kenya Bribery Index of 2006, the judiciary is
listed with 21.3% of bribery instances and features prominently, ranked 12, among
national institutions, with the Kenya Police ranked 1.18 A common perception
about the court is that justice is not possible without the necessary funding. As a
result, many people do not consider addressing the court with their grievances.19
17 The Administration Police was established in order to support the officers of the Provincial
Administration (see Cap 85 Administration Police).

18 Transparency International Kenya, The Kenya Bribery Index 2007, p. 12.
19 Interview with NGO staff, arid lands, July 2007.
Imposing Modern Law

The shortcomings of the judiciary constitute serious constraints for magistrates
in the performance of their duties and for peoples access to justice. However,
there is one additional important factor that appears to undermine the effective-
ness of the judiciary in creating peace in the arid lands: the normative differences
between formal and local justice. This paradigmatic divergence provides few in-
centives for the local population to seek redress from the judiciary. Consequently,
most cases that appear before the arid lands courts are filed by the police and not
by individual citizens, and they only reflect official notions of justice.
According to magistrates deployed in the arid lands, most cases handled at
court involve the urban population only, and the majority of cases are filed by the
police, while civil cases are less common.20 One magistrate confirmed that in her
work in central Kenya, the general understanding about the court was much higher.
As a result, people came and expressed their individual concerns and were willing
to wait all day outside the court building to be heard. In comparison the arid lands
population considers the courts as something much more casual.21
The types of cases filed with the courts differ from area to area, depending on
socio-economic features of the local communities. In some instances, the court
serves the police, in their attempt to establish order in town. Typical cases filed are
loitering with an immoral purpose (prostitution) or individuals charged with drunk
or disorderly behaviour.22 Other typical town cases are traffic accidents, owner-
ship or boundary issues, and cases of rental disagreements. Generally, most cases
filed relate to gambling, child custody, and a few to robbery with violence,23 illegal
arms possession, and women charged with brewing of illicit brews.24 Magis-
trates in other areas reported charges for assault, sodomy, indecent assaults, de-
filement, some stock thefts, robbery with violence (usually connected to cattle
raids) and, most significantly, cases concerning illegal refugees from Somalia. In
the Muslim areas there are cases of child maintenance, as Islamic law allows for
divorce, and people therefore divorce more easily.25
Most of the criminal offences listed here are based on the official legal defini-
tion of a crime, but they do not necessarily comply with local understandings of
what constitutes punishable behaviour. Brewing of alcohol, gambling, illegal arms
20 While there is no aggregated data for the cases filed at arid lands courts, this confirms the
countrywide trend of a large majority of criminal cases filed at courts.
21 Interview with Magistrate, arid lands, July 2007.
22 Idem.
23 Interview with Magistrate, arid lands, October 2007.
24 Idem.
25 This is in contrast to the pastoralist groups that do not adhere to Islam. Among the Pokot, for
example, respondents explained that divorce is nearly impossible. Interview with government
officer, arid lands district, November 2007.
possession,26 and drunk or disorderly behaviour do not necessarily constitute of-

fences in pastoralist communities. For example, Somalis are usually brought be-
fore the court due to illegal possession of firearms, but they dont understand and
think they have the right to possess arms.27 Consequently, by applying the formal
law, the magistrates run the risk of alienating communities and of jeopardizing
the reputation of the courts as being just.
In other instances, communities have a very different idea of how to deal with
certain offences. One magistrate, for example, gave lifelong imprisonment to a
perpetrator who was found guilty of the defilement of an under-aged girl. How-
ever, the community perceived such defilement cases very differently. The most
threatening consequence for the family of the girl is that she may suffer from a
social stigma and nobody will want to marry her. Defilement cases are therefore
treated very secretly, and they are resolved through payment of compensation to
the girls family. The latter then often presses the perpetrator to marry the girl.
The magistrate defended his sentence: People were astonished, I wanted to make
a point and show that this is illegal.28 The punishment in this case may have
served as a deterrent or reduced the willingness of the community to address the
judiciary. In future, people may simply refrain from seeking help from the official
system if they perceive the sentences as unfair.
As a result of the different definitions of a crime in the formal versus the
local systems, and as a result of a general inefficiency of the judicial system peoples
perceptions of the courts are negative. Some are suspicious about the courts and
do not believe that they can help redress their grievances. Others are afraid of the
official laws, as official procedures are a mystery for them.29 Some claimed that
they feared the court so much that they did not want to get involved, even as
witnesses: If you dont understand the court system, you will receive injustice,30
or, When you go to court it is the victim that gets punished.31
There is one type of conflict, however, in which communities demonstrate
interest in addressing the formal legal system: grievances against official authori-
ties. This is not surprising as such conflicts cannot be solved by informal means
and informal authorities alone. However, it is often impossible for communities
to engage in formal legal relations to secure their rights against formal authorities.
26 The fact that illegal arms possession is one of the main types of cases dealt with by the
magistrates poses a more general concern. Where the state fails to protect the community and their
property, and people try to protect themselves which requires arms if the enemies are armed too
it is questionable whether people should then be detained for arms possession.
28 Interview with Magistrate, arid lands, October 2007.
29 Interview with NGO staff, arid lands, September 2007.
30 Interview with Sheik, arid lands, September 2007.
31 Idem.
Communities are constrained by a lack of understanding of their rights vis--vis

the authorities. Furthermore, district authorities or courts are located a great dis-
tance away, there are few lawyers available, and the costs of filing a case are high.
The chief, as the only formal authority in the community, is thus often the sole
address for such conflicts or grievances. He may or may not report them to the
district authorities, where the chiefs power and influence challenge the power of
the institution against which the complaint is lodged. Where such cases have in
fact been taken up at a formal level, they were backed by well-educated individuals
that understood the formal system and legal avenues to pursue, and were able to
support their home communities in accessing justice.32
Justice Outside the Courts

Many of the cases handled by the courts do not relate to the conflicts that cause
serious disorder among the arid lands communities. This is not surprising, since
most pastoralist communities would not turn to a court for an issue that seriously
jeopardizes social stability, such as conflicts over natural resources or cattle rus-
tling. One magistrate confirms: Sometimes I read about big cases in the newspa-
per: there is a big shootout, cattle rustling, the police is involved, the District
Commissioner gets involved, but none of that ends here in court.33 Given that
the official law is based on a different understanding of justice, it is minimally
effective in creating stability. Communities prefer to solve conflicts through infor-
mal means instead, although they may refer to the police to trace their cattle and to
the District Commissioner to help in negotiating peace. What the court would be
able to deliver in the case of cattle rustling the detention of the perpetrator
barely helps the society in resolving conflict and is no incentive for anyone to
address the official system. Even in capital crimes, communities may simply insist
on implementing their own solutions based on their own norms. There is a gen-
eral perception among the population that conflicts between community mem-
bers or communities should not be pursued by the official system. Local leaders
feel responsible for dealing with the conflicts of their communities and they are
convinced that they have better solutions than the state can provide. Some feel
harassed if the police or the court insists on their involvement, and they have little
faith that the court is actually able to bring peace to their communities.
In instances where the police file with the court a case that is also perceived as
a crime by the local community, leaders will attempt to remove the case from the
official system and handle it according to local concepts. If official institutions try
32 Interviews with community members, arid lands, September 2007.

to interfere, local populations mobilize and enforce their will upon the official
system. This is not difficult, as local realities in the arid lands have proven stron-
ger. Elders or community leaders will appear at court requesting the withdrawal
of a case. To withdraw a case, elders usually argue that it is part of their responsi-
bilities; that out-of-court solutions have already been agreed on; or they simply
declare that the case does not constitute a transgression of the rules.34 If elders
achieve the withdrawal of grave criminal cases, the courts are in danger of under-
mining their credibility as impartial, independent and law abiding institutions.35
One fundamental conceptual difference between formal and informal systems
lies in the understanding about who is the perpetrator and who should be held
accountable for the crime. In pastoralist societies it is the entire kin group that is
held responsible for the acts of any single individual. The kin act as social safe-
guards, as they have to ensure that all their members comply with communal rules.
If an incident takes place it is due to their failure. Since the kin is held liable, they
also have to pay the compensation which is negotiated between the two parties in
conflict. The elders as the main authorities of a kin group lead such negotiations.
The payment of compensation for losses or damages is a common means of
ending conflicts. The payment is not made to the victim, but to the members of
the aggrieved kin group. Such transactions constitute important occasions that
define the boundaries of a kin group and strengthen its internal relations, and they
are important for the re-establishment of peace between two groups.36 This con-
tradicts the very notion of the responsibility of the individual perpetrator. Since
the judiciary will only pursue the guilt of an individual, it will have little impact on
solving the conflict that is perceived to be between groups. In fact, it may instead
have a disruptive influence on the negotiations, as the parties have to factor into
the compensation terms that the perpetrator may be additionally punished by the
state. Following the logic of the official law, the payment of compensation equates
with the individual perpetrator getting away without being punished.
The request for withdrawal of such cases following payment of compensa-
tion can pose a serious challenge for the magistrates. Most of them are well
aware of the tension between the legal framework and the reality they are operat-
34 Interview with peace committee members, arid lands, November 2007.

35 The magistrate in Isiolo indicated that there is an attempt to withdraw most cases that reach
the court. The magistrate made an interesting observation based on five years in another area of
Kenya. During that time, conflict parties attempted to withdraw only two cases. This is in stark
contrast to the experience of the magistrate in the arid lands. Interview with Magistrate, arid lands,
July 2007.
36 This can take place at different social levels. Depending on who the conflict parties are, it can
comprise clans from different ethnic groups (in which scenario the clans may get support from
other clans of their own ethnic group), or it may entail members of different lineages within one
clan.
ing in, but they are given little guidance on how to respond. The trial and sentenc-
ing of the offender may simply lead to renewed violence among the families and
clans involved, but the magistrates are obliged to apply the law. Consequently,
some have developed their own ways of dealing with these contradictions. Most
magistrates seem to make a distinction between cases where they can accept out-
of-court solutions and cases that seriously violate the law: We encourage out-of-
court solutions in small matters, such as assaults, but in sexual offences we refuse.37
Magistrates who refuse withdrawal of cases face significant challenges. One
magistrate, for example, complained that the parties involved will simply not ap-
pear at court as witnesses or complainants. Police-officers complained that they
will attempt to collect a witness for a hearing, but may find that he or she is hiding
and not willing to cooperate anymore.38 This can make it impossible for the court
and the police to proceed with the case. Once informal negotiations have success-
fully taken place, there is a common understanding among the parties that the
court should not interfere any further. Given the harsh environment and the lack
of infrastructure that makes it extremely difficult for the police to operate, there
may be no choice for the police and the court other than to close a case. In many
cases of theft, cattle rustling or murders the victim group knows the identity and
the whereabouts of the perpetrators, but may not be willing to reveal this infor-
mation to the police or the magistrate. Sometimes in the heat of the moment they
may call the police to arrest the suspect. The same group may soon ask for his
release as negotiations could have started and it would be difficult to proceed
while the perpetrator is detained. The victims family is likely to have an interest in
receiving compensation rather than in the criminal trial of the individual perpetra-
tor, which may leave them with no tangible benefit. One magistrate explained:
They do not want us to interfere in their way of life.39 They never threaten the
court, but they tell you what they want you to do.40
Communities also use the detention and trial of the perpetrator as leverage in
negotiations or in the realization of compensation payments. After parties to a
conflict have reached a settlement on the amount of compensation to be paid, the
victim party is concerned about actual payment. They will therefore reserve the
option of submitting the perpetrator to the official system. Hence, while society
relies on local ways of conflict resolution, it uses the official system as a back-up
to ensure the implementation of informal agreements.
Closing a case poses legal challenges and opens space for abuses. The police
and magistrates often have to rely on the law that allows a complainant to with-
37 Interview with Magistrate, arid lands, November 2007.

38 Idem.
39 Idem.
40 Idem.
draw a case before a final order is passed, if he can satisfy the court that there are
sufficient grounds for permitting withdrawal.41 Magistrates can also dismiss a case
if the complainant does not appear at court. The prosecutor can withdraw a case
pending further investigation. If the prosecution asks for the case to be with-
drawn, the magistrate has the discretion to agree or refuse. In this case, the victim
party, which usually does not have a lawyer, would not know how to argue to
prevent the prosecutor from withdrawing the case. A problem with cases pend-
ing further investigation is that the police may return to the community to arrest
the offender again after some time. The community, usually having reconciled by
then, may not understand such action and simply feels harassed by the police.
Only the Attorney-General has the power to enter nolle prosequi, an application not
to pursue charges. However, this does not bar the person from subsequent pro-
ceedings against him on account of the same facts.42
Formalizing a Parallel Legal Regime

While grievances against formal authorities could be addressed by increasing ac-
cess to the formal justice system for communities, this may not necessarily help in
inter-communal conflicts. In such cases, careful negotiations are required between
different socio-cultural systems in order for both sides to agree on a solution. The
formal judiciary has not been able to play a principal role in this as it adds to the
mix another set of concepts of justice. A study of Practical Action concludes:
The formal justice institutions have proved to be inadequate in responding not
only to outbreaks of violence but in addressing the underlying causes and facilitat-
ing peace building and reconciliation of communities.43 In fact, some think that
the courts have more of a negative impact in such cases: We never take cases to
court, because it causes animosities and may result in revenge.44
The dire need for solutions to the many persisting inter-communal and inter-
ethnic conflicts in the arid lands has led to the development of ad hoc initiatives
for conflict management.45 Their recipe for success was that they worked with
locally legitimate concepts, and that they integrated local level stakeholders into
41
Criminal Procedure Code (Chapter 75 of the Laws of Kenya). Withdrawal of Complaint,
Section 204.
42
Criminal Procedure Code (Chapter 75 of the Laws of Kenya), Right of Attorney general to
Enter Nolle Prosequi, Section 82.
43
Mohamud Adan and Ruta Pkalya, Conflict management in Kenya: Towards policy and strat-
egy formulation, Practical Action (2006), p. 7.
44
Interview with peace committee member, arid lands, November 2007.
45
For more detailed information, please see Tanja Chopra, Building Informal Justice in North-
ern Kenya, Justice for the Poor / The World Bank, Legal Resource Foundation, Nairobi (2008).
the process.46 Even the Government got involved when the Office of the Presi-
dent tasked the National Steering Committee for Peacebuilding and Conflict
Management (NSC) to oversee and coordinate the various initiatives.
These peacebuilding efforts were taken to the next step, when representatives
of different groups in Isiolo and Garissa met to negotiate a general agreement on
how to deal with offences that frequently occurred in the area and that posed a
threat to peace. As a result they drafted a declaration, which defines offences and
regulates their punishment. Substantially, the declaration merges elements of dif-
ferent traditional conflict resolution mechanisms that the parties could agree
upon.47 The declaration was signed by the representatives from all levels of soci-
ety including formal authorities. It was later published, including a revised version,
as the Modogashe-Garissa Declarations.48 A number of other such agreements
followed in other areas, accompanied by the establishment of peace committees.
More recently, the NSC has been drafting a policy framework on peacebuilding
and conflict management.49 The draft is based on experience from the arid lands
and recognizes that the legal framework treats all acts of violence as crimes against
the state and by doing so gives minimal attention to the needs and conceptions of
justice that the victim or victims may have.50 For that reason, one of the prin-
ciples of the policy framework is that conflict management and peacebuilding
must be sensitive to local cultures and must build on existing traditional conflict
resolution mechanisms.51
The peace initiatives have developed because the official justice system has not
been able to respond to conflicts among the pastoralist communities. They have
essentially delivered what the justice sector has not been able to. They have taken
46 See, for example, Dekha Ibrahim and Janice Jenner, Wajir Community Based Conflict Man-
agement, (1996), paper accessed at http://payson.tulane.edu/conflict/Cs%20St/case_studies.htm;
Janice Jenner and Dekha Ibrahim Abdi, Voices of Local Peace Initiatives Kenya Peace and Devel-
opment Network, Wajir Peace and Development Committee, National Council of Churches of
Kenya, and Amanis Peoples Theatre, Collaborative for Development Action, October (2000),
accessed at http://www.cdainc.com/publications/rpp/casestudies/rppCase07Kenya.pdf; Margie
Buchanan-Smith, and Jeremy Lind, Armed violence and poverty in Northern Kenya: A case study
for the Armed Violence and Poverty Initiative, Centre for International Cooperation and Security.
University of Bradford, UK (2005).
47 See Office of the President/National Steering Committee on Peace Building and Conflict
Management, The Modogashe-Garissa Declarations, Nairobi (2005).

48 Office of the President / National Steering Committee, 2005.
49 See Office of the President, National Policy on Peacebuilding and Conflict Management.
First Draft, July (2006), Nairobi, unpublished document. For a discussion of the policy see Adan
and Pkalya 2006b. Please note that the document is currently re-drafted in order to address the
recent post-electoral crisis. A new draft was released in August 2008.
50 Office of the President, June 2006, p. 11.
51 Office of the President, June 2006.
local approaches, worked with locally legitimate authorities and amalgamated lo-
cally accepted conflict resolution processes and punishments. The declarations
resemble a law with a penal code, which the conflicting parties have drafted them-
selves, and which was officially legitimated by the executive arm of the national
government.52
What is emerging then are in effect parallel legal regimes: one is the official law,
which is legislated and enforced based on a separation of powers; and the other is
the declarations, which are supported by the national executive. Both make sense
in their own sphere. One is the basis for law and order in the whole country, while
the other one guarantees peace in a specific region. The moment they have to
coexist, however, the logic of the two as a single system becomes flawed. Imple-
menting the declarations may create peace, but may contradict the official laws at
the same time. Implementing only the law will not achieve an end to conflict. If
the very purpose of the law is peaceful coexistence it needs to be reviewed and
adjusted to better cater for specific social contexts. Interestingly, the recent post-
electoral violence in Kenya, in January 2008, has sparked a similar debate: what of
justice can be sacrificed for peace?53
Improving Judicial Responses to Socio-Cultural Context

The role of the judiciary in the arid lands of Kenya illustrates how access to the
formal justice system is not only a problem of short distances to courts, low costs
or preventing the backlog of cases. While these are all crucial concerns, there is an
additional aspect that hinders courts from dispensing justice: Local concepts of
how to deal with conflicts or grievances can contradict formal laws, with the result
that formal institutions are rendered irrelevant. In the case of the arid lands of
Kenya a parallel legal system has emerged, which out of necessity has been em-
braced by the national executive. This signal for the formal justice sector the fail-
ure of its main mission the establishment of peace in society through law and
order. What is becoming apparent is that judicial processes and laws need to re-
spond better to the socio-cultural contexts if the formal justice sector is to remain
relevant.
While on the one hand it is crucial to increase legal awareness among the popula-
tion, on the other the judiciary needs to adopt measures that allow it to comply
52 This solution may be unconstitutional, as the monopoly of adjudication of criminal offences
lies with the judiciary. Hence, for declarations to become legal, they may need to be provided for in
the constitution and subsequently in the respective legislation.
53 For example, NGOs supporting peace initiatives in some of Nairobis areas reported back
that members of the public rejected reconciliation efforts and saw the NGO as partisan agents,
aiming to circumvent justice. Conversation with NGO staff, November 2008.
better with societies concepts and realities. Colonial powers imposed a western
legal paradigm on societies organized with different normative systems. Paradoxi-
cally, it is western countries that have more recently started to reform their own
justice systems to improve responses to the social distinctions amongst their popu-
lations. Australia has integrated indigenous courts in their Magistrate Courts, so
indigenous populations can be served justice that complies with their norms.54
Canada was the first country to introduce training in social context for its judges.
The model was subsequently exported to Australia and South Africa, as well as
elsewhere. The rationale for the training was that these countries had multi-cul-
tural societies and a lack of knowledge of social context by judges endangered the
equal treatment of citizens before the law. Without being able to recognize forms
of inequality and discrimination, judges were not able to deliver equality and ac-
cess to justice for all.55 In South Africa, the rationale for introducing social con-
text training was to eradicate remaining discrimination that had developed under
the apartheid system. The aim was to establish a fair and unbiased justice system
that would take economic, social and cultural diversities into account.56 Further-
more, some countries have allowed for restorative aspects of justice to be taken
into account in judgments.57
These are all measures that can help official laws and judicial processes in de-
veloping countries comply with local understandings of justice. Such ready tools
would help bridge the gap between different understandings of justice and would
contribute to increasing the significance of the judiciary in the eyes of local com-
munities. In most cases the challenge of social differences in developing coun-
tries, such as Kenya, is even more significant, and it is here, where social context
training for judges, or the legislation of restorative elements of justice are most
needed.
Increased acknowledgement of socio-cultural contexts has to accompany a
more traditional and comprehensive technical approach to judicial reform, such
54 See, for example, The State of Queensland Department of Justice and Attorney-General,
Summary of the Review of the Murri Court Report, December 2006, accessed at: http://www.
courts.qld.gov.au/Factsheets/M-MC-ReviewSummary.pdf.
55 Justice Donna Hackett, Richard F. Devlin with Tony George Puthucherril, Social Context
Education for Realizing Equality Rights. Lessons from the Canadian Experience, in The Common-
wealth Judicial Education Institute (CJEI) Report, September 2007, pp. 13-17.
56 Suki Goodman, The Social Context Training Cooperation between Sida and the Law, Race
and gender Unit, University of Cape Town, Sida Evaluation Report 07/19, Department for Africa,
2007.
57 See for example, Judge Stan Thorburn, The Arrival of Restorative Justice in the Courts.
A brief outline of the New Zealand experience, A Paper for a Symposium sponsored by the Insti-
tute of Crime Prevention and Control and Nanjing University, December 2003, accessed at: http:
//www.restorativejustice.org/editions/2006/feb06/stan/; SFU Center for Restorative Justice,
Restorative Justice. A Summary, 2001, Accessed at: http://www.sfu.ca/cfrj/fulltext/summary.pdf.
as construction of courts or improvement of court administration and case man-

agement, as well as a more frank political debate about legal judicial vestiges. Only
then can the judiciary in many developing countries render elusiveness and be-
come a relevant actor in maintaining peace and order in peoples lives.

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UNIVERSITY OF NAIROBI

BACHELOR OF LAWS (LL.B.) PROGRAM

LAW, DEMOCRACY AND GOVERNANCE

Jorgen Elklit and Andrew Reynolds, Judging Elections and Election

Collette Akoth Suda, Formal Monogamy and Informal Polygyny in Parallel:

Governance, the World Bank and

DAVID AND TOMYOUNG

Governance: What's in a Name

C Political Studies Asoocidtion, 1994

governance thus seems to be an important departure from previous policy,

Governance and the World Bank

and an independent judiciary, and a substantive element which refers to the

tainable Growth, p.58.

Transparency is essential for economic efficiency, and for the prevention of

Reagan administration came to power, it criticized the Bank for promoting

Experience with Adjustment Lending

Development?, paper presented at University of York CSAS 1991.

Politicdl S:udies Association. 1994

the shortcomings of previous policy. It has in recent years concentrated more

Internal Bank Factors

or politically benign.56 There have also been more specific influences at

Governance and Liberal Theory

TechnicalReforms and Neutrality

Pluralism, Tolerance and Civil Society

was seen as a sphere of interactions free of state interference and characterized

7J Landell-Mills, Governance, civil society and empowerment.

0Political S w d m Associauon, 1994

impact of what he calls the cultural logic of African politics.82There is then on

Landell-Mills, Governance. civil society and empowerment.

Q Politlcal Siudics Association, 1994

New Political Economy and the Liberal Self

0 Political Studies Association, 1994

Engineering Civil Society: the World Bank and NGOs

J . Clark, Democrafising Developmenf.p.30.

Landell-Mills, Governance.civil society and empowerment.

( Political Studies Association. 1994

lo) M. Foucault, The History of Sexuality: an Introduction (Harmondsworth, Penguin, 1990);

lm W. Connolly. IdentifylDiflerence (Cornell, Cornell University Press, 1991). p.42.

This commentary points to the poor state of empirical measures of the

This commentary is the beginning of an effort to better measure gov-

The relative emphasis on checking institutions rather than power-

The bias against thinking about state capacity is particularly strong

In addition, there has been a large literature on public sector reform

The existing measures of state quality or capacity have a number of

Bo Rothstein makes a number of persuasive arguments that impar-

In addition, there are a number of Rule of Law measures that relate to

Chinese scholars have tried to measure the spread of rule-based

worse; governance is thus about execution, or what has traditionally

1. Bureaucrats are personally free and subject to authority only within

Conditions 15 and 9 are probably at the core of what people think

Nonetheless, certain procedural measures would remain at the core of

1. There is a difference between extractive potential and actual extrac-

of government revenues. One could argue that if taxation is going to

Good procedures and strong capacity are not ends in themselves. We

notoriously hard to measure. For example, standardized test scores, a

A final measure of the quality of government is the degree of bureau-

tors that increase employment in Congressional districts X and Y, or

autonomy. A high degree of autonomy is what permits innovation,

It would be nice therefore to have a more objective measure of

Capacity and Autonomy

to certain professional norms that seek to preclude certain types of

too many rules excessive discretion

high-capacity country. Figure 4 contains some hypothesized positions,

It is clear that in evaluating the quality of governance in large, complex