HUMAN RIGHTS QUARTERLY
Legal Systems and Constitutionalism
in Sub-Saharan Africa: An Empirical
Examination of Colonial Influences on
Human Rights
Linda Camp Keith*
Ayo Ogundele**
Abstract
This article examines the extent to which the British and French colonial
legacies influence the human rights behavior of post-colonial African states.
We have examined three areas where the literature suggests different colonial
experiences for former British and French colonies: legal systems, formal
provisions for judicial independence, and emergency powers. Our findings
show very little support that different colonial legacies in those three areas
affect the level of state abuse of personal integrity in sub-Saharan Africa.
We find no solid evidence, for example, that common law system countries
have better human rights behavior than civil code system countries. Nor is
there any support for the propositions that former French colonies would
have less constitutional provisions for judicial independence and checks
against the executive during times of emergency than English colonies.
Indeed, contrary to expectations, it is the French-legacy states that have
*Linda Camp Keith is Assistant Professor of Political Science, School of Economic, Political
and Policy Sciences, University of Texas at Dallas. Her current research interests are human
rights and the rule of law, as well as the US Supreme Court. She has published research on
human rights in Political Research Quarterly, International Studies Quarterly, Journal of Peace
Research, Judicature, and Human Rights Quarterly. Her work on the US Supreme Court has
been published in Judicature, American Journal of Politics, Social Science Quarterly, and
Social Science History and includes a forthcoming book on the judicial review.
**Ayo Ogundele, Professor of Political Science, Kilgore College.
His current research interests are the US Supreme Court, particularly its early years, and
the courts of western Africa. He has published research on the Supreme Court in American
Journal of Politics, Social Science Quarterly, and Social Science History. He has presented
numerous papers on the Nigerian Supreme Court and the courts of Western Africa.
Human Rights Quarterly 29 (2007) 1065–1097 © 2007 by The Johns Hopkins University Press
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stronger protections for emergency powers, perhaps suggesting recognition
of the broad powers of the president in the bequeathed French political
system and the need to curtail some of those powers. Likewise, we find
little evidence that these elements affect their human rights behavior.
I. Introduction
The wind of democracy blowing through sub-Saharan Africa since the early
1990s has led to an unprecedented wave of newly crafted constitutions, many
of which incorporate bills of rights and guarantees of judicial independence,
all aimed at protecting human rights and guarding against a resurgence of
absolutist rule on the continent. As of 2004, all fifty-four nations of the region
have either written a new constitution or modified their previous ones in an
effort to move toward a more democratic or liberalized form of governance.
It remains doubtful, however, whether these constitutional reforms can improve human rights protections for citizens in the region.
Recent research by one of this study’s co-authors found little linkage
between rights-friendly constitutional provisions and states’ abuse of personal
integrity in the region in the period between 1976 and 1997.1 However, the
research also showed that constitutional provisions for judicial independence
and individual rights perform much more strongly in former French colonies
than in former British colonies across the globe, suggesting the need to
examine the impact of colonial experience on constitutionalism and states’
human rights practices. We build previous research and ask whether there
are differences in human rights practices among French and British African
states, expecting that the colonial differences found at the global level also
manifest themselves at the regional level.
We anticipate that in the African context such colonial differences derive from the governmental systems Great Britain and France bequeathed
to their former colonies, especially in terms of executive power or from
the colonial power’s influence on the type of legal system adopted by the
independent state. For instance, the semi-presidential systems, which the
former French colonies were more likely to have adopted, have been said
to constrain the executive less than the Westminster system that influenced
the former British colonies. Additionally, it has also been argued that former
British colonies were more likely than Francophone states to develop an
independent judiciary that acts against arbitrary state power. The common
law system, which the former British colonies are more likely to adopt, has
1.
Linda Camp Keith, National Constitutions and Human Rights Protection: Regional Differences and Colonial Influences, in Understanding Human Rights Violations (Sabine C.
Carey & Steven C. Poe eds., 2004).
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Empirical Examination of Colonial Influences on Human Rights
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been said to provide more stability and consistency of jurisprudence, as well
as a stronger rule of law, than the Dutch-Roman civil code of the former
Iberian and French colonies. Below we elaborate on these arguments and
the literatures on which they draw.
The study proceeds in four sections. First, we briefly review the literature
on the link between colonial legacy and human rights behavior of African
countries. Second, we examine other factors, which are both theoretically
and empirically linked to state respect for human rights. Next, we describe
our research design and the data we use to measure our concepts. Our
analysis covers all sub-Saharan African countries in the period from 1976
to 2001. Lastly, we present our findings and conclude with a discussion of
the implications of our study.
II. Colonial Legacy of African Countries and Human
Rights
The debate over the relationship between colonialism and human rights
in Africa has been closely linked to the debate between the universality
or cultural relativity of human rights and fundamental freedoms. While
some scholars believe that non-western societies can be just as receptive
to constitutionalism as western countries, several others have questioned
whether constitutionalism will function fully in regions outside of Europe
(and European-settled countries). The primary argument is that these rights
reflect Western values, which give primacy to individualism, and thus run
counter to traditional values that are strongly embedded in the context of
the community.2 Abdullahi Ahmed An-Na’im makes a much broader argument, shifting the focus toward the process through which constitutionalism
developed in the West, ultimately concluding that the success of constitutionalism, whether British, American, or French, was due to an incremental
and practical process of trial and error over centuries. Further, he argues
that “first and foremost” constitutionalism was a product of the state’s “own
2.
Bonnie Ibhawoh, Between Culture and Constitution: Evaluating the Cultural Legitimacy
of Human Rights in the African State, 22 Hum. Rts. Q. 838 (2000); Amani Daima, Challenges for Emerging African Democracies, 10 Peace Rev. 57 (1998); Atilio A. Borón, Latin
America: Constitutionalism and the Political Traditions of Liberalism and Socialism, in
Constitutionalism and Democracy: Transitions in the Contemporary World (Douglas Greenberg,
et al. eds., 1993); Samuel P. Huntington, The Clash of Civilizations?, 72 For. Aff. 22
(1993); Franck Moderne, Human Rights and Postcolonial Constitutions in Sub-Saharan
Africa, in Constitutionalism and Rights: the Influence of the United States Constitution Abroad
(Louis Henkin & Albert J. Rosenthal eds., 1990); Claude Ake, The African Context of Human Rights, 34 Africa Today 5(1987); see also Abdullahi Ahmed An-na’im, Introduction,
in Human Rights under African Constitutions: Realizing the Promise for Ourselves (Abdullahi
Ahmed An_na’im ed., 2003).
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history, process, and context; constantly evolving and adapting in response to
its own challenges, internal and external” and sustained by “its own culture,
institutions, and nationalist mythology.”3
As we will see, much of the skepticism about the universality of constitutionalism relates directly to colonialism and its enduring legacy, particularly
in Africa, which experienced the most recent and widespread level of colonialism.4 One argument casts the post-colonial constitutions as illegitimate,
positing that many of these documents were imposed upon the states by
the departing colonial powers and therefore, lacked the legitimacy of public
consensus.5 Additionally, Claude Welch contends that the constitutional
recognition of rights was often belated and tended to protect the European
expatriate population’s rights over the native majority’s rights.6 Furthermore,
Okoth-Ogendo asserts that the independence constitutions of post-colonial
Africa merely perpetuated the colonial institutions of control and coercion.7
Makau Mutua concurs, noting that despite Kenya’s liberal constitution, “the
post-colonial state was autocratic at its inception because it wholly inherited
the laws, culture, and practices of the colonial state.”8 However, Bonnie
Ibhawoh notes that many of the colonial-engineered constitutions have now
been revised or entirely rewritten to reflect the “new national realties” of
the post-colonialist state in Africa.9
A second view associated with theories of neo-imperialism emphasizes
the long-term legacy of colonial experience in shaping the economic and
political structures of these states. It is argued that colonialism did not cultivate a climate supportive of constitutionalism, but instead produced states
that were “created to be totalitarian, oppressive, and exploitative” and to
be supportive of the “colonial purposes of dominating African peoples and
exploiting their resources.”10 Colonial rule, Eboe Hutchful contends, “delegitimated or submerged other linking mechanisms . . . [of] African society”
and instead “established a privileged political discourse . . . accessible only
to a small minority.” Hutchful further maintained that the “political selection mechanisms similarly excluded large strata of the population.”11 John
3.Abdullahi Ahmed An-na’im, African Constitutionalism and the Rule of Islam 171 (2006).
4. Claude E. Welch, Human Rights and Development in Africa 75–89 (1984).
5. Ibhawoh, supra note 2, at 846, notes that many of the colonial-engineered constitutions
have now been revised or entirely rewritten to reflect the “new national realties” of the
post-colonialist state in Africa. See also Moderne, supra note 2; Welch, supra note 4;
Makau Mutua, Justice Under Siege: The Rule of Law and Judicial Subservience in Kenya,
23 Hum. Rts. Q. 96 (2001). See also An-na’im, Introduction, supra note 2.
6. Welch, supra note 4, at 13.
7. H.W.O. Okoth-Ogendo, Constitutions without Constitutionalism: Reflections on an
African Paradox, in Constitutionalism and Democracy, supra note 2, at 69.
8. Mutua, supra note 5, at 97.
9. Ibhawoh, supra note 2, at 846.
10. Daima, supra note 2, at 59.
11. Eboe Hutchful, Reconstructing Political Space: Militarism and Constitutionalism in Africa,
in Constitutionalism and Democracy, supra note 2, at 218.
2007
Empirical Examination of Colonial Influences on Human Rights
1069
Rusk also asserts that colonial modes of production were instrumental in the
formation of a privileged comprador class whose interests were more linked
to the international system of trade than to indigenous interests. He argues
that when the system of privilege within a developing nation was challenged
by the masses, ruling elite, lacking sufficient economic or political resources
to deal with the discontent, inevitably turned to repression to deal with this
challenge.12 Thus, colonialism not only set up a system of exclusion, but
also established a pattern of state repression as a tool to deal with popular
dissent. A pattern of previous state repression has been shown to be the
single strongest predictor of a state’s future human rights behavior.13
A third focus looks to social cleavages. Here, the postcolonial African
state is conceived as a colonial construct. Henry Carey observed that colonial-induced social cleavages caused by artificial drawing of territorial
boundaries, which left formerly separate and different ethnic tribes and
cultures under one political entity, have contributed to ethno-religious conflicts and other problems in postcolonial states.14 Indeed, the proposition
that the ethnic composition of society affects provision of human rights has
been confirmed by empirical study.15
Finally, a fourth focus has been the effects of inherited legal systems,
governmental systems, and constitutional limitations on executive powers.
Carey maintains the imposition of foreign legal systems on indigenous legal
systems has not only led to dual and conflicting legal (and political) cultures,
it has also contributed to the perceived illegitimacy of legal decisions and
institutions in many postcolonial states.16 However, several distinctions have
been made between the English common law and French civil law systems.
It can be argued, for example, that the underlying principle of separation
of powers is seen somewhat differently by judges in civil law and common
law countries.
Common law countries, especially the United States, see judges as
balancing the power of the other branches of government. By contrast, the
original idea of separation of powers in France was to assign different roles
to legislation and to judges, with the latter only applying the law. Other
12.
13.
14.
15.
16.
John Rusk, Structure of Neo-Colonialism: The African Context of Human Rights, 33
Africa Today 73 (1986).
Steven C. Poe & C. Neal Tate, Repression of Human Rights and Personal Integrity in the
1980s: A Global Analysis, 88 Am. Pol. Sci. Rev. 853 (1994) (hereinafter “Repression”);
Steven Poe, C. Neal Tate & Linda Camp Keith, Repression of Human Rights to Personal
Integrity Revisited: A Global Cross-National Study Covering the Years 1976–1993, 43
Int’l Stud. Q. 291 (1999) (hereinafter “Repression Revisited”).
Henry F. Carey, The Postcolonial State and the Protection of Human Rights, 22 Comp.
Stud. South Asia, Africa & Middle East 59, 66 (2002).
Chris Lee et al., Ethnicity and Repression: The Ethnic Composition of Countries and Human Rights Violations: Regional Differences and Colonial Influences, in Understanding
Human Rights Violations, supra note 1.
Carey, supra note 14, at 65–66.
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characteristics associated with common law include predictability of results
(through the principle of stare decisis) and the desire to treat equally everyone who faces the same or similar legal problems, as opposed to the civil
system where a judge is not legally bound by the previous decision of a
higher court in an identical or similar case and is quite free to ignore such a
decision. But more importantly, in regard to human rights, Sandra Joireman
posits that adopting English common law leads to stronger rule of law than
does adopting continental civil law, but argues this to be true only in those
countries that have been colonized.17
Franck Moderne expects that constitutionalism and judicial independence
will be less prevalent in Francophone than Anglophone Africa. He believes
the Francophone states have had less exposure to US constitutionalism and
that the “dual link of common language and French metropolitan training
enjoyed by a majority of Francophone African elites” and has influenced
the new states’ judicial models.18 He also notes that Anglophone states may
have a longer history with judicial independence due to the independence
of African colonial judiciary under the British prior to independence. When
political power was transferred in these countries, Moderne argues, the
“constitutional guarantee of judicial independence was considered to be
of the utmost importance.”19 Still, he cautions that the post-colonial experiences in Ghana, Nigeria, Tanzania, and Zambia temper the expectation that
judicial independence might have significant influence on the protection of
individual human rights.20
The problematic experiences in these states are linked to one-party state
rule, judicial membership in political parties, and bias in rulings in favor of
the ruling party. Moderne also argues that Francophone African states tended
to “follow more directly the constitutional models of their former colonial
powers.”21 This led him to conclude that judicial review, absent in French
and Belgium systems, would not be practiced (or not practiced as well) in
post-colonial Francophone countries. Additionally, he concludes that in Francophone African states the court structures were nearly nonexistent at the time
of independence and could not be constructed easily or quickly. Likewise,
Carey suggests that former British colonies were more likely to develop an
independent judiciary that acted against arbitrary state power.22
With regard to governmental systems, B.O. Nwabueze draws a link between the British parliamentary system, where most executive power has to
17.
18.
19.
20.
21.
22.
Sandra F. Joireman, Colonization and the Rule of Law: Comparing the Effectiveness of
Common Law and Civil Law Countries, 15 Pol. Econ. 4 (2004).
Moderne, supra note 2, at 335.
Id. at 328.
Id. at 329.
Id. at 335.
Carey, supra note 14.
2007
Empirical Examination of Colonial Influences on Human Rights
1071
be conferred by the legislature, leaving the executive no inherent discretionary power to act against citizens, and the French presidential system, which
gives the executive considerable areas of rule-making power that is independent of the legislature.23 These systemic differences suggest that the French
system would be more likely to facilitate an executive’s dictatorial actions.
However, since the 1970s, most African states have adopted one variation of
the presidential system or another, and only two states—Le Sotho and Swaziland—continue to use the Westminster parliamentary system. Still, it is possible
that an indirect legacy of these systems remains, in regard to constitutional
constraints, on a dictatorial president by the legislature and the judiciary with
regard to human rights, especially during times of emergencies.
Moderne points out that national emergencies “erode judicial control or
render its influence ineffective by creating conditions for the assumption by
the government of extraordinary powers.”24 While most constitutions tend
to limit constitutionalism to some degree during a state of emergency, some
newly promulgated constitutions seek to regulate executive power during
these emergencies primarily through constraints on the executive through
provision of explicit checks by the legislative or judiciary branch. It seems
important to control for these constitutional provisions in examining judicial
independence. Further, while neither Moderne nor Nwabueze make a direct connection to the colonial legacy, it seems likely that such differences
might be present. For example, British common law systems have tended to
produce more explicit and in-depth constitutions; whereas, former-French
territories have tended to adopt shorter constitutions that merely set a general outline of governmental organization that are then fleshed out through
organic law.25 As Moderne points out, early experiences with parliamentary
systems tended to produce constitutions with stronger checks on the executive vis-à-vis the legislature. We would therefore expect that constitutions
in former British colonies would have stronger checks against the executive
during times of emergency.
Our present inquiry is directed at this fourth category of colonial legacies. Thus, we examine, in conjunction with other factors, whether colonial
differences in legal systems, formal provisions for judicial independence, and
formal delineation of emergency powers affect the human rights behavior of
African states south of the Sahara. Our objective is to determine the relative
influence these aspects of colonial legacy have had on actual state human
rights practices in the region. We focus on these posited colonial differences,
more so because a recent analysis of African constitutional jurisprudence
begs the question of whether formal legal systems would influence the human rights behavior of African states.
23.
24.
25.
B. O. Nwabueze, Constitutionalism
Moderne, supra note 2, at 340.
Nwabueze, supra note 23, at 31.
in the
Emergent States 35 (1973).
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H. Kwasi Prempeh argues that “[f]or the better part of its life the African state—and for that matter, the African judiciary—has paid homage to
a jurisprudence of executive supremacy, with regrettable consequences for
civil liberties and personal freedom across the continent.”26 He attributes this
desultory behavior partly to deference to the long-standing British tradition
of common-law doctrine and its concomitant principle of stare decisis by
African supreme courts. Thus, while analyses by Nwabueze and Moderne
posit that colonial differences in legal systems and constitutions left British
colonies better able to protect or provide human rights than their French
counterparts, Prempeh’s analysis suggests that these differences have been
muted by actual behavior and the philosophy of constitutional jurisprudence
adopted by courts on the continent. We seek to determine empirically, by
means of quantitative data, the validity of these competing hypotheses that
the literature has suggested.
• Hypothesis One: Sub-Saharan African states with a British colonial
legacy will have better human rights behavior than those states with a French
colonial legacy.
• Hypothesis Two: Sub-Saharan African states with common law systems
will have better human rights practices than those states with the Dutch-Roman civil code legal system.
• Hypothesis Three: Sub-Saharan African states with a British colonial
legacy will have stronger provision for judicial independence than those
states with a French colonial legacy. In turn, these provisions will be more
likely to influence human rights behavior in the British-legacy states than
the French.
• Hypothesis Four: Sub-Saharan African states with a British colonial
legacy will have stronger provision for constraints on the executive during
states of emergency than those states with a French colonial legacy. In turn,
these provisions will be more likely to influence human rights behavior in
the British-legacy states than the French.
III. Personal Integrity Abuse Model
The abuse of the right to personal integrity is a narrow set of human rights
violations that include political imprisonment, torture, and killings or disappearances. While this set of rights does not include all of the rights promoted
under the international covenants and some constitutions, it does focus on
the abuses that are considered to be the most “egregious and severe crimes
26.
H. Kwasi Prempeh, A New Jurisprudence for Africa, 10 J. Democ. 135, 140 (1999).
The jurisprudence of executive supremacy is discussed as needing to give way to what
Prempeh terms “a jurisprudence of constitutionalism.”
2007
Empirical Examination of Colonial Influences on Human Rights
1073
against humanity,” and the ones that represent abuses that “are of the sort
that usually can . . . be avoided.”27 More importantly, this set of rights covers the core rights that would have to be fulfilled in order for the provision
of the other rights to be meaningful.
We employ the Political Terror Scales to measure abuse of personal
integrity rights, which measure the abuse on a scale of 1 to 5, with 1 representing states with the least amount of abuse and 5 representing states
with the highest level of abuse.28 Two sets of scales have been created: one
based on US State Department Country Reports on Human Rights Practices
and one based on Amnesty International reports. In Steven Poe and C. Neal
Tate’s personal integrity models, parallel analysis has been conducted using
each of these measures. Overall, the studies of personal integrity abuse using
these two measures have produced consistent results across the two measures.
Following later studies, we employ only one of the personal integrity scales
in this article—the one based on the Amnesty International reports.29
This work builds upon previous studies of personal integrity abuse,
and thus we use the standard model and control for four factors that have
27.
28.
Poe & Tate, Repression, supra note 13, at 854.
The countries are assigned a rating according to the following rules from Raymond
Gastil:
(1) Countries [are] under a secure rule of law, people are not imprisoned for their views, and
torture is rare or exceptional. . . . Political murders are extremely rare.
(2) There is a limited amount of imprisonment for nonviolent activity. However, few persons are
affected, torture and beating are exceptional. . . . Political murder is rare.
(3) There is extensive political imprisonment, or a recent history of such imprisonment. Execution
or other political murders and brutality may be common. Unlimited detention, with or without
trial, for political views is accepted.
(4) The practices of [level 3] are expanded to larger numbers. Murders, disappearances are a
common part of life. . . . In spite of its generality, on this level terror affects primarily those who
interest themselves in politics or ideas.
(5) The terrors of [level 4] have been expanded to the whole population. . . . The leaders of
these societies place no limits on the means or thoroughness with which they pursue personal
or ideological goals.
Michael Stohl & David Carleton, The Foreign Policy of Human Rights: Rhetoric and
Reality from Jimmy Carter to Ronald Reagan,7 Hum Rts. Q. 205 (1985)(citing Raymond
D. Gastil, Freedom in the World: Political Rights and Civil Liberties, 37 (1980)).
Examples of level 5 repression would be seen in Afghanistan in 1985 and Colombia
in 1991. The Philippines in 1990 and Libya in 1987 are examples of level 4 countries.
Cuba in 1991 and Ghana in 1982 are examples of level 3 countries. Congo in 1985
and Cameroon in 1987 are examples of level 2 countries. Benin in 1991 and Oman in
1991 are examples of level 1 countries. Full sets of examples and excerpts of country
reports for each level of repression are available in Mark Gibney & Matthew Dalton,
The Political Terror Scale, 4 Pol’y Stud. & Developing Nations 73 (1986).
29. Because Amnesty International reports tend to leave out countries with good human
rights behavior, a potential bias would arise if we used only countries on which Amnesty
International reported. Therefore, consistent with Poe, Tate & Keith, in cases in which
Amnesty International did not issue a report but the US State Department did, a score
gained from applying the same set of standards to the US State Department reports was
substituted. Poe, Tate & Keith, Repression Revisited, supra note 13, at 291.
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consistently proven to be statistically and substantively significant in state
abuse of these rights. These variables are described in detail in previous
studies, thus we only briefly summarize their theoretical links and their
operationalization.30
Population Size: Conway Henderson argues that states with large populations may be tempted to “resort to repression as a coping mechanism”
to deal with threats that arise due to severely strained national resources
and unfulfilled public needs.31 Additionally, Henderson argues that we
must statistically control for population size because the laws of probability dictate that as the number of persons in a country grows so does the
number of opportunities for repressive actions. Recent empirical evidence
has supported Henderson’s hypothesis.32 The natural logarithm of the total
national population is used in the model in order to deal with the skewed
distribution of the population data.
Economic Standing: Expectations concerning economic standing follow
those of population size. Neil Mitchell, James McCormick, and Henderson
all argue that social and political tensions related to economic scarcity
are likely to increase instability in the poorest countries and thus increase
the probability that the regime would use repressive measures to maintain
order; whereas, in wealthier countries the population will be satisfied and
will be less likely to present a threat to order that would trigger repressive
state action.33 Empirical evidence has consistently shown that higher levels
of economic development reduce the probability of political repression.34
30.
31.
32.
33.
34.
For fuller details see Poe & Tate, Repression, supra note 13; Poe, Tate & Keith, Repression
Revisited, supra note 13. The Poe, Tate, & Keith 1999 dataset (Repression Revisited) is
used here with the exception that the Polity III measure has been replaced by the Polity
98 measure and the author has extended the data set to include 1994–1996.
Conway W. Henderson, Population Pressures and Political Repression, 74 Soc. Sci. Q.
322, 325 (1993).
Poe, Tate & Keith, Repression Revisited, supra note 13; Christian Davenport, Assessing
the Military’s Influence on Political Repression, 23 J. Pol. & Mil. Soc. 119 (1995); Poe
& Tate, Repression, supra note 12; Linda Camp Keith, The United Nations International
Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights
Behavior?, 36 J. Peace Res. 95 (1999); Sabine C. Zanger, A Global Analysis of the Effect
of Political Regime Changes on Life Integrity Violations, 1977–93, 37 J. Peace Res. 213
(2000). Henderson hypothesized that growth in population size would increase the
likelihood of repression. Henderson, Population Pressures and Political Repression, supra
note 31. While he did find evidence of this effect in his single-year study, those results
have not been found to hold up in fuller studies of human rights abuse. Rather we have
found population size to be the significant factor, both statistically and substantively.
Neil J. Mitchell & James M. McCormick, Economic and Political Explanations of Human Rights Violations, 40 World Pol. 476 (1988); Conway W. Henderson, Conditions
Affecting the Use of Political Repression, 35 J. Confl. Resol. 120 (1991).
For example, Mitchell & McCormick, supra note 33; Poe & Tate, Repression, supra note
13; Poe, Tate & Keith, Repression Revisited, supra note 13; Keith, The United Nations
International Covenant on Civil and Political Rights, supra note 32.
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Empirical Examination of Colonial Influences on Human Rights
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Economic standing is operationalized as the state’s per capita GNP (in
thousands, US Dollars).35
Military Regime: As Poe and Tate note, the role of the military is one of the
factors first explored by those interested in human rights-related phenomena.36
Military regimes are believed to be more likely to resort to repression, because
armies by their nature and by habit are prepared to use force as a means of
control or coercion.37 Empirical evidence of the impact of military regimes on
human rights behavior has been somewhat weak. In personal integrity studies
the results have been rather inconsistent compared to other factors.
Poe and Tate and later, Linda Camp Keith, examined the impact of military
controlled regimes on personal integrity abuse.38 In these studies, military
controlled regimes are defined as either regimes that come to power “as a
consequence of a successful coup d’état, led by the army, navy, or air force,
that remained in power with a military person as the chief executive for at
least six months in a given year”39 or regimes “with either a civilian as the
chief executive and several military persons in the cabinet or military head of
government who nominated a civilian as the head of government and himself
worked behind the scenes.”40 Military control was not statistically significant
in Poe and Tate’s shorter study but was in their extended study.41 Christian
Davenport, who examined negative sanctions, a different form of repression,
used three measures of military influence: size of the military, military sector
allocations, and direct representation of the military in the government.42 Only
35.
36.
37.
38.
39.
40.
41.
42.
Despite some criticism of national GNP data, GNP has continued to dominate as the
most appropriate measure of economic development. Alan Heston, A Brief Review
of Some Problems in Using National Accounts Data in Level of Output Comparisons
and Growth Studies, 44 J. Development Econ. 29 (1994); Jack Donnelly, Human Rights,
Democracy, and Development, 21 Hum. Rts. Q. 608, 623 (1999).
Poe & Tate, Repression, supra note 13, at 853.
See, e.g., Samuel Huntington, The Soldier and the State (1964); R.D. McKinlay, & A.S.
Cohan, A Comparative Analysis of the Political and Economic Performance of Military
and Civilian Regimes, 8 Comp. Pol. 1 (1975); James Zwick, Militarism and Repression in
the Philippines, in The State as Terrorist: the Dynamics of Government Violence and Repression
(Michael Stohl & George Lopez eds., 1984); Ekkart Zimmerman, Macro-comparative
Research on Political Protest, in Handbook of Political Conflict: Theory and Research (Ted
Robert Gurr ed. 1986); Poe & Tate, Repression, supra note 13; Davenport, Assessing the
Military’s Influence, supra note 32.
Poe & Tate, Repression, supra note 13; Poe, Tate & Keith, Repression Revisited, supra
note 13.
Hamed Madani, Socioeconomic Development and Military Policy Consequences of
Third World Military and Civilian Regimes, 1965–1985, 61 (1992)(unpublished Ph.D.
dissertation, University of North Texas)(on file with UNT Library).
Id.
This information was not in the shorter study, Poe & Tate, Repression, supra note 13,
but was in the extended study, Poe, Tate & Keith, Repression Revisited, supra note 13.
Davenport, Assessing the Military’s Influence, supra note 32; Data is not available across
the global set of countries or the complete time period under study here; Arthur S. Banks,
Cross-National Time-Series Data Archive, 1991 (Databanks Int’l CD-ROM, current through
2001).
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military sector allocations demonstrated a consistent statistically significant
relationship with repression across all of his models.43 In this study, we
continue to employ the Poe and Tate measure of military regime as defined
above.
Political Democracy: Democracy has consistently been shown to strongly
reduce the likelihood of various forms of political repression,44 including the
abuse of personal integrity rights.45 Theoretical explanations of the nexus between democracy and repression have tended to focus either on institutional
and structural characteristics and/or the values and norms in democracies.
Political scientists argue that democratic principles emphasize bargaining,
compromise, and elections as the only appropriate or fair means to resolve
disagreements.46 These norms socialize democratic leaders to resolve conflict
through non-violent means. Political institutions reinforce these norms, but
more importantly, scholars argue that political institutions provide the tools
for the public to hold government officials accountable for their actions.47
For example, with fully participatory and competitive elections, a potentially
abusive leader might feel vulnerable to public discontent at the polls and thus
be curbed from abusive practices. Another example could be the curbing of
a potentially abusive leader by a system of checks and balances that place
judicial or legislative constraints on the executive’s powers.
43.
44.
45.
46.
47.
Davenport’s subsequent studies have either not continued to control for military influence
or have not reported those results. See Christian A. Davenport, “Constitutional Promises”
and Repressive Reality: A Cross-National Time-Series Investigation of Why Political and
Civil Liberties are Supressed, 58 J. Pol. 627 (1996); Christian A. Davenport, Liberalizing
Event or Lethal Episode?: An Empirical Assessment of How National Elections Affect the
Suppression of Political and Civil Liberties, 79 Soc. Sci. Q. 321 (1998).
See, e.g., Larry Diamond, Juan Linz, & Seymour Lipset, Democracies in Developing Countries, Vol.
4 (1988); Conway W. Henderson, Conditions Affecting the Use of Political Repression,
35 J. Confl. Resol. 120 (1991); Helen Fein, More Murder in the Middle: Life Integrity
Violations and Democracy in the World, 1987, 17 Hum. Rts. Q. 170 (1995); Davenport,
Assessing the Military’s Influence, supra note 32; Christian Davenport, Multi-Dimensional
Threat Perception and State Repression: An Inquiry Into Why States Apply Negative
Sanctions, 39 Am. J. Pol. Sci. 683 (1995); Davenport, “Constitutional Promises,” supra
note 43; Davenport, Liberalizing Event or Lethal Episode?, supra note 43.
Poe & Tate, Repression, supra note 13; Poe, Tate & Keith, Repression Revisited, supra
note 13; Stephen C. Poe et al., The Continuity of Suffering: Domestic Threat and Human
Rights Abuse Across Time, in Paths to State Repression: Human Rights and Contentious Politics
in Comparative Perspective (Christian Davenport ed., 2000); Zanger, supra note 32.
See, e.g., Ted Robert Gurr, The Political Origins of State Violence and Terror: A Theoretical
Analysis, in Government Violence and Repression, supra note 37, at 45; Henderson, Conditions Affecting the Use of Political Repression, supra note 33; Poe & Tate, Repression,
supra note 13; William J. Dixon, Democracy and the Peaceful Settlement of International
Conflict, 88 Am. Pol. Sci. Rev. 14 (1994); Rudolph J. Rummel, Power Kills: Democracy as a
Method of Nonviolence (1997).
See, e.g., Gurr, The Political Origins of State Violence and Terror, supra note 46; Philippe
C. Schmitter & Terry Lynn Karl, What Democracy Is . . . and Is Not, 2 J. Democ. 75 (1991);
Poe & Tate, Repression, supra note 13; Dixon, supra note 46; Rummel, supra note 46;
Zanger, supra note 32.
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Empirical Examination of Colonial Influences on Human Rights
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This study uses the most recent polity measure of democracy, Polity IV.48
The choice of the polity measure is also consistent with other recent studies
of personal integrity abuses49 and negative sanctions.50 Polity’s institutional
democracy indicator is typically employed as an 11-point additive index
coded along four dimensions using the following rules: Competitiveness
of Political Participation: competitive (3), transitional (2), and factional (1);
Competitiveness of Executive Recruitment: elective (2) and transitional (1);
Openness of Executive Recruitment: open election (1) or dual (hereditary
and election) (1); and Constraint on Chief Executive: executive parity or
subordination to legislative or judicial branches (4), intermediate constraints
(constraints that fall between parity/subordination and substantial limitations)
(3), substantial limitations (2), and intermediate constraints (constraints that
fall between substantial limitations and slight to moderate limitations) (1).
This study follows Kristian Gledtisch, Michael Ward, and Keith and
uses the components separately for both statistical and theoretical reasons.51
Empirically, each of these studies showed that the components of scale
have varying degrees of impact and statistical significance. Additionally, our
theoretical concern here is to control for and test differences in colonial
legacy with regard to the development of legal systems and democratic
48.
49.
50.
51.
See Center for International Development and Conflict Management, Polity IV, available
at http://www.cidcm.umd.edu/polity. In order to simplify and facilitate the presentation
of the analysis, we have chosen to use only one measure of democracy for this study.
We have chosen to drop the Freedom House measure in this analysis for several reasons. It has been criticized for being “highly impressionistic, being no more than an
estimate by a person who has collected a lot of seemingly relevant information on all
of the countries of the world.” John. F. McCamant, A Critique of Present Measures of
Human Rights Development and an Alternative, in Global Human Rights: Public Policies,
Comparative Measures and NGO Strategies (Ved P. Nanda, James R. Scarritt, & George W.
Shepard eds., 1981). While the measurement has improved over time and is considered
less impressionistic, see Poe & Tate, Repression, supra note 13, the measure does include
one dimension that may overlap with the behavior captured in the dependent variable.
Additionally, the measure is counter-intuitive in that the small score represents a higher a
level of political rights and the higher score a lower level of rights. The results produced
with this measure have performed nearly identically to both the Vanhanen measure and
the polity measure. We did run the full model with the Freedom House measure and
the results generally held.
Wesley Milner, Steven Poe, & David Leblang, Security Rights, Subsistence Rights and
Liberties: A Theoretical Survey of the Empirical Landscape, 21 Hum. Rts. Q. 403 (1999);
Zanger, supra note 32.
Davenport, Multi-Dimensional Threat Perception, supra note 43; Davenport, Assessing
the Military’s Effect, supra note 32; Davenport, “Constitutional Promises,” supra note
43; Davenport, Liberalizing Event or Lethal Episode, supra note 43.
Kristian S. Gleditsch & Michael D. Ward, Double Take: A Reexamination of Democracy
and Autocracy Patterns in Modern Politics, 41 J. Confl. Resol. 361 (1997); Linda Camp
Keith, Constitutional Provisions for Individual Human Rights (1976–1996): Are They
More than Mere “Window Dressing”?, 55 Pol. Res. Q. 111 (2002); Linda Camp Keith,
International Principles for Formal Judicial Independence: Trends in National Constitutions and Their Impact (1976 to 1996), 85 Judicature 194 (2002)
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institutions such as an independent judiciary, so it is important to control
for the development of executive constraints as well.
IV. Legal Systems
We created dummy variables to designate each type of legal system in subSaharan Africa. We used five categories derived from the divisions created
by the University of Ottowa Law School’s World Legal System project:
Civil Law Systems: [T]he countries found in this category have drawn mainly
on their Roman legal heritage in addition to other sources, and while giving
precedence to written law, have resolutely opted for a systematic codification
of their ordinary law. Also found in this category are countries, generally of the
mixed law variety, that have not resorted to the technique of codifying law but
that have retained to varying degrees enough elements of Roman legal construction, “as a written reason,” to be considered affiliated to the civil tradition. On
the other hand, we also find countries in this category where Roman influence
was weaker but whose law, codified or not, rests on the notion of legislated
law which in many ways resembles the systems of countries with a “pure” civil
tradition (for example, Scandinavian countries that hold a unique position within
the “Romano-Germanic” family).
Common Law Systems: Like that of civil law, the common law system has taken
on a variety of cultural forms throughout the world. Notwithstanding the significant nuances that such diversity can sometimes create, and which political
circumstances further accentuate, this category includes political entities whose
law, for the most part, is technically based on English common law concepts and
legal organizational methods which assign a pre-eminent position to case-law, as
opposed to legislation, as the ordinary means of expression of general law. Thus
this category includes countries or political entities that may not always have close
ties with the English tradition and that sometimes possess an abundance of codes,
legislation and non-jurisprudential normative instruments, but for which common
law jurisprudence retains its character as the fundamental law (e.g. California).
Customary Law System: Hardly any countries or political entities in the world
today operate under a legal system which could be said to be typically and
wholly customary. Custom can take on many guises, depending on whether it is
rooted in wisdom born of concrete daily experience or more intellectually based
on great spiritual or philosophical traditions. Be that as it may, customary law
(as a system, not merely as an accessory to positive law) still plays a sometimes
significant role, namely in matters of personal conduct, in a relatively high number
of countries or political entities with mixed legal systems. This obviously applies
to a number of African countries but is also the case, albeit under very different
circumstances, as regards the law of China or India, for example.
Muslim Law System: The Muslim legal system is an autonomous legal system
which is actually religious in nature and predominantly based on the Koran. In
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Empirical Examination of Colonial Influences on Human Rights
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a number of countries of Muslim persuasion it tends to be limited to personal
status, although personal status can be rather broadly defined.
Mixed Legal Systems: The term “mixed,” which we have arbitrarily chosen over
other terms such as “hybrid” or “composite,” should not be construed restrictively,
as certain authors have done. Thus this category includes political entities where
two or more systems apply cumulatively or interactively, but also entities where
there is a juxtaposition of systems as a result of more or less clearly defined
fields of application.52
V. Judicial Independence
Many commentators have stressed the potential importance of an independent judiciary in the protection of constitutionally promised human rights.53
A truly independent judiciary should be able to withstand incursions upon
individual rights because 1) the courts’ power and fiscal well-being will be
protected; 2) the courts will have some ability to review the actions of other
agencies of government; and 3) the judges’ jobs will be constitutionally
protected. The United Nations sets forth standards for achieving an independent judiciary in its Basic Principles on the Independence of the Judiciary.
In addition, the UN Special Rapporteur on the independence of judges and
lawyers, recommended to the Human Rights Commission several general
principles for judicial independence.54 Merging the two sets of principles
52.
See University of Ottawa Law School website, available at http://www.droitcivil.uottawa.
ca/world-legal-systems/eng-monde.php.
53. See, e.g., L.W. H. Ackermann, Constitutional Protection of Human Rights: Judicial Review,
21 Colum. Hum. Rts. L. Rev. 59 (1989); The Global Expansion of Judicial Power (C. Neal Tate
& Torbjörn Vallinder eds. 1995); Antonin Scalia, Federal Constitutional Guarantees of
Individual Rights in the United States of America, in Human Rights and Judicial Review (David
M. Beatty ed., 1994); Nwabueze, supra note 23; Penuell M. Maduna, Judicial Review and
Protection of Human Rights Under a New Constitutional Order in South Africa, 21 Col.
Hum. Rts. L. Rev. 73 (1989); Rosenthal, Afterword, in Constitutionalism and Rights, supra
note 2; Leszek Garlicki, et al., Roundtable Discussion, in Constitutionalism and Human
Rights: America, Poland, and France (Kenneth W. Thompson & Rett R. Ludwikowski eds.,
1991).
54. The principles are as follows:
1. All necessary measures should be taken to respect, protect, and promote the
independence of judges.
2. In particular, the following measures should be taken:
a. The independence of judges should be guaranteed pursuant to the provisions of the Convention and the constitutional principles, for example by inserting specific provisions in the
constitutions or other legislation or incorporating the provisions of this recommendation
in internal law. Subject to the legal tradition of each State, such rules may provide, for
instance, the following:
i. d
ecisions of judges should not be subject to any revision outside any appeals procedures
as provided by law;
ii. the terms of office of judges and their remuneration should be guaranteed by law;
iii. n
o organ other than the courts themselves should decide on its own competence, as
defined by law;
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produces the following criteria for an independent judiciary:55
1. Terms of office and remuneration are constitutionally guaranteed,
regardless of whether judges are appointed or elected.
iv. w
ith the exception of decisions on amnesty, pardon or similar, the Government or the administration should not be able to take any decision which invalidates judicial decisions retroactively.
b. The executive and legislative powers should ensure that judges are independent and that
steps are not taken which could endanger the independence of judges.
c. All decisions concerning the professional careers of judges should be based on objective
criteria and the selection and career of judges should be based on merit, having regard
to qualifications, integrity, ability and efficiency. The authority taking the decision on the
selection and career of judges should be independent of government and administration. In
order to safeguard its independence, rules should ensure that, for instance, its members are
selected by the judiciary and that the authority decides itself on its procedural rules.
However, where the constitutional or legal provisions and traditions allow judges to be appointed
by government, there should be guarantees to ensure that the procedures to appoint judges are
transparent and independent in practice and that the decisions will not be influenced by any
reasons other than those related to the objective criteria mentioned above. These guarantees could
be, for example, one or more of the following:
i. a special independent and competent body to give the Government advice which it
follows in practice; or
ii. the right for an individual to appeal against a decision to an independent authority;
or
iii. the authority which makes the decision safeguards against undue or improper influences.
d. In the decision-making process, judges should be independent and be able to act without
any restrictions, improper influence, inducements, pressures, threats or interferences, direct
or indirect, from any quarter or for any reason. The law should provide for sanctions against
persons seeking to influence judges in any such manner. Judges should have unfettered
freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not
be obliged to report on the merits of their cases to anyone outside the judiciary.
e. The distribution of cases should not be influenced by the wishes of any party to a case or
any person concerned with the results of the case. Such distribution may, for instance, be
made by drawing lots or a system for automatic distribution according to alphabetical order
or some similar system.
f. A case should not be withdrawn from a particular judge without valid reasons, such as
cases of serious illness or conflict of interest. Any such reasons and the procedures for such
withdrawal should be provided for by law and may not be influenced by any interest of the
Government or administration. A decision to withdraw a case from a judge should be taken
by an authority which enjoys the same judicial independence as judges.
3. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement
age or the expiry of their term of office, where such exists.
55.
Report of the Special Rapporteur on the independence of judges and lawyers, Dato’
Param Cumaraswamy, Question of the Human Rights of All Persons Subjected to Any
Form of Detention or Imprisoning, submitted pursuant to Commission on Human Rights
Resolution 1995/36, Comm’n on Hum. Rts., 52d Sess., Provisional Agenda Item 8, U.N.
Doc. E/CN.4/1996/37 (1999), ¶19; see also United Nations Basic Principles on the Independence of the Judiciary, available at http://www.ohchr.org/english/law/indjudiciary.
htm.
Id. Items 1–4 are principles that appear in both the UN Basic Principles and the Report
of the Special Rapporteur (at least in general form). The fifth item is strictly from the
United Nations Basic Principles and the last two items are strictly from the Special
Rapporteur’s report.
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Empirical Examination of Colonial Influences on Human Rights
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2. The decisions of judges are subject to any revision outside any appeals procedures provided for by law.
3. The courts have exclusive authority to decide on their own competence, as defined by law—their decisions are made without any restrictions,
improper influences, inducements, pressures, threats or interference, direct
or indirect, from any quarter or for any reason.
4. The courts have jurisdiction over all issues of a judicial nature. This
criterion seems to relate to the criterion that everyone shall have the right to
be tried by ordinary courts or tribunals using established legal procedures.
This criterion could be condensed to the requirement that civilians not be
tried in military courts or exceptional courts.
5. The courts must have adequate resources.
6. The executive and legislative powers should ensure that judges are
independent and that steps are not taken which could endanger the independence of judges.
7. The selection and career of judges should be based on merit: qualifications, integrity, ability, and efficiency. The authority making the decision
on the selection and career of judges should be independent of government
and administration. If the constitutional or legal provisions and traditions
allow judges to be appointed by government, there should be guarantees
to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions to appoint should be based on
the above criteria.
Gerard Blasi and David Cingranelli developed an index of judicial
independence that overlaps substantially with the above list. Their index
measures whether the judiciary 1) are housed in a separate branch; 2) are
fiscally autonomous; 3) have the power of judicial review of the actions of the
legislative and executive branches; 4) have life tenure (at least for the highest
level judges); 5) have restricted removal; 6) are organized in a hierarchical
system; 7) hold public hearings; and 8) are professional judges.56
The most notable difference between the UN principles and Blasi and
Cingranelli’s index is the latter’s inclusion of judicial review, which is not
explicitly specified in the UN lists. In fact, authorities disagree as to whether
judicial review is a power that contributes to an independent judiciary or
whether an independent judiciary is a necessary component for the real
exercise of judicial review.57 The operationalization of judicial independence
that we offer in the next section includes judicial review as an indicator,
since it has been strongly argued to be a substantial factor in the protection
56.
57.
Gerard J. Blasi & David L. Cingranelli, Do Constitutions and Institutions Help Protect
Human Rights? in Human Rights and Developing Countries (David Cingranelli ed., 1996).
Compare id.; Rosenthal, Afterword, supra note 52.
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of human rights, particularly during periods of crisis or instability.58 Our
hypothesis is that the constitutional guarantee of an independent judiciary
will increase state respect for the human right to personal integrity.
The efforts of the world’s constitution makers to establish an independent and effective judiciary were assessed by coding the presence of nine
indicators. These are:
Guaranteed Terms. The constitution guarantees terms of office, regardless of whether judges are appointed or elected, and restricts removal of
judges.
Decisions Final. The decisions of judges are not subject to any revision
outside any appeals procedures provided by law.
Exclusive Authority. The courts have exclusive authority to decide on their
own competence, as defined by law—their decisions are made without any
restrictions, improper influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.
No Exceptional or Military Courts. The courts have jurisdiction over
all issues of a judicial nature and civilians are tried by ordinary courts or
tribunals, not military or exceptional courts.
Fiscal Autonomy. The courts are fiscally autonomous. The salaries of
their judges and/or their annual budgets are protected from reduction by
the other branches.
Separation of Powers. The courts are housed in a separate branch from
the executive and legislative powers.
Enumerated Qualifications. The selection and career advancement
of judges are based on merit qualifications, e.g., integrity, ability, and efficiency.
Judicial Review. Courts exercise judicial or constitutional review of
legislative and executive branches.59
Hierarchical system. Courts are structured in multiple layers with the highest level court exercising final control/review of lower court decisions.
The presence in the constitutions of each of these components of judicial
independence and effectiveness was coded as follows:
58.
59.
International Commission of Jurists, States of Emergency: Their Impact on Human Rights (1983);
Ackermann, supra note 52; Maduna, supra note 52; Subrata Roy Chowdhury, Rule of Law
in a State of Emergency (1989).
In many constitutions it was easy to identify the constitutional provision for judicial review because the document explicitly stated that courts exercise “constitutional review”
or “judicial review.” In other cases, we used the following definition as the standard for
determining whether constitutional or judicial review existed:
Right and duty conferred on a court or particular courts of a country to interpret authoritatively
the constitution of that country, to decide authoritatively the constitutionality of laws, executive
and administrative acts, and in appropriate cases, to declare such laws and acts invalid and unenforceable when they conflict with the country’s constitution.
Ackermann, supra note 53, at 60.
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Empirical Examination of Colonial Influences on Human Rights
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2 = constitution provides for it fully and explicitly;
1 = constitution provides for it somewhat or provides for it vaguely,
but not fully;
0 = constitution does not provide for it.
In addition, two variables were coded -1 for the presence of provisions
that are specifically designed to counter judicial independence and effectiveness: no exceptional courts (4 above) was coded -1 for constitutions
that specifically allowed civilians to be tried in military courts or explicitly
allowed the formation of exceptional courts; and judicial review (8 above)
was coded -1 for constitutions that gave the power of constitutional review to
another branch of government such as the executive or the legislature.60
V. Provisions for States of Emergency
In order to test the hypotheses outlined above, we used four indicators of
constitutional regulation of states of emergency. Data were gathered by
analyzing the works of Albert Blaustein61 and Gisbert Flanz.62
1) Legislative Declaration. This variable is coded 2 = responsibility for
declaring the state of emergency is given explicitly to the legislative branch;
1 = states of emergency (declared by the executive) are explicitly subject
to confirmation by the legislature; 0 = no mention of who has the power to
declare such a state; and -1 = the executive branch is explicitly given the
power to declare a state of emergency with no mention of a role for the
legislature or courts.
2) Cannot Dissolve Legislature. This variable is coded 2 = the legislature
may not be dissolved during the emergency or meets “by right”; 1 = vague
provision for legislature meeting, but no explicit prevention from dissolving
the legislature (i.e., may say that legislature can prolong length of session or
can reconvene); 0 = no mention of dissolving legislature in regard to states
of emergency; and -1 = automatically suspends the legislature during a state
of emergency or gives the executive explicit power to do so.
3) Duration Limited. This variable is coded 2 = duration of the emergency
is specified for a set time period and extensions are subject to legislative
approval; 1 = duration is specified or legislative approval is specified but
not both; and 0 = no mention of duration or extension process.
4) Non-Derogable Rights. This is a dichotomous (or binary) variable
coded 1 = constitutions that give a list of non-derogable rights or include
60.
61.
62.
The data sources for these variables come from Albert P. Blaustein, Constitutions of
World (1993); Gisbert H. Flanz, Constitutions of the Countries of the World (1997).
Blaustein, supra note 60, at 70–71.
Flanz, supra note 60.
the
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TABLE 1
Level of Personal Integrity Abuse by Colonizer
LEVEL
1
2
3
4
5
Mean
Chi-square
% Level
Cum %
British
10.6
10.6
41.8
52.4
25.8
78.2
15.7
93.9
6.1
100.0
2.65
299.5
% Level
Cum %
French
13.1
47.0
30.2
8.1
1.6
13.1
60.1
90.3
98.4
100.0
2.39
P < .0001
Source: data generated by authors.
a statement that certain rights/freedoms cannot be revoked during states of
emergency, and 0 = otherwise.
VI. Analysis
Table One presents a comparison of differences in the levels of personal
integrity abuse among the British and French former colonies from 1977–
2001. The percentages represent country-years as the data are pooled across
countries and time. The hypothesis that British-legacy countries would have
better human rights behavior than French-legacy countries is unsupported
by these bivariate data. Instead, the overall pattern that emerges is that
countries with French colonial legacy achieve better human rights scores
than those with a British colonial legacy. On the personal integrity abuse
scale, the French-legacy countries earn a mean of 2.39 compared to 2.65
in the British-legacy set of countries.
There is a 3 percent difference in regard to the percentage of countryyears in which countries achieve the best level of human rights behavior.
This is true when the countries are under a secure rule of law; people are
not imprisoned for their views; torture is rare or exceptional; and political
murders are extremely rare: 13.1 percent in the French-legacy countries,
as compared to 10.6 percent in the British-legacy countries. The difference
is even larger as we move up with scale, with an approximately 6 percent
higher number of French-legacy country-years achieving a level two score:
47 percent to 41.8 percent and an approximately five percent difference at
level three: 30.2 percent French-legacy and 25.8 percent British-legacy.
Ultimately, we see that over 90 percent of the French-legacy country-years
achieve at least a moderate level of human rights protection during this time
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Empirical Examination of Colonial Influences on Human Rights
1085
period, compared to only 78 percent of the British-legacy countries. While
only 1.6 percent of the French-legacy countries earn the highest abuse score
(level five), over 6 percent of the British-legacy countries are designated as
those in which imprisonment, torture, disappearances, and political murder
are so extensive and such a common part of every day life that the threat
extends to the entire population.
Table Two reflects the impact of the British and French colonial experiences in a controlled model for personal integrity. We find that both colonial
experiences produced a negative effect on human rights abuse relative to
those countries that had other colonial experiences (such as Portuguese,
German, or Belgian). The coefficients produced by the French experience
are slightly larger than that of the British experience (-.24 compared to
-.19, respectively). Of the four democracy measures, only competitiveness
of executive recruitment is statistically significant (coefficient of -.09, p <
.07).63 Interestingly, among sub-Saharan African countries, economic development has no observable impact on human rights abuse of this nature.
Population size is the only other control variable that affects human rights
behavior (coefficient .09, p < .0001). The amount of variation explained in
the model is moderate, 55 percent.
Table Three presents the comparison of levels of personal integrity abuse
between the different legal system types. There are no purely common
law systems in sub-Saharan Africa; rather most states have mixed systems
combining two or more elements. This makes it difficult to directly test the
hypothesis that common law system countries would have better human
rights behavior than civil code system countries. To account for the mixed
systems, we first examine human rights behavior across the various legal
system types. Table Three reports the mean human rights abuse score and the
distribution of abuse scores by system type. First, when we compare mean
human rights abuse across the legal system types, we find that the means
range from 2.21 to 3.92, with the mean for the entire set of sub-Saharan
states being 2.61.
Pure civil law countries score the second lowest on the abuse scale,
2.38. The legal system type that scores the lowest is the Muslim-Civil mixed
system, 2.21. The most severe score is earned by the Muslim-Civil-Common
mixed system type, 3.92. It is hard to discern general trends in regard to
common law systems because of the mixed nature of the systems, but one
clear trend is that any system with a common law component earns abuse
scores that are higher (worse) than the overall mean, with only one exception
(the Common-Muslim-Customary mixed system). Of the seven systems with
a civil law component, three fall above the average (including the highest
score in the data) and three below (including the lowest score in the data),
63.
The marginal level of statistical significance employed by this study is p < .10.
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TABLE 2
Personal Integrity Model 1997–2001
Coefficient
Panel Corrected SE
Lagged Personal Integrity Abuse
0.64
0.04
French Colonial Legacy
-0.24
0.08
British Colonial Legacy
-0.19
0.07
Regulation of Executive Recruitment
-0.01
0.06
Competitiveness of Executive Recruitment -0.09
0.06
Openness of Executive Recruitment
-0.01
0.02
Constraints of Executive
0.01
0.02
Economic Standing
0.01
0.01
Military Regime
-0.01
0.01
Population Size
0.09
0.02
Constant
-0.22
0.25
R-squared
55.0
Wald Chi-sq
952.98
p < .0001
p
0.0001
0.001
0.01
0.42
0.07
0.46
0.34
0.46
0.28
0.0001
0.18
Source: data generated by authors.
with one at 2.62 which is roughly the general mean. Of the four mixed systems with a Muslim law component, three fall well below the overall mean.
Of the four mixed systems with a customary law component, one half fall
below and one half above the mean with a fairly wide distribution.
To further test the impact of legal systems we next tested each system
type as a dummy variable in the full personal integrity model. The coefficients produced by each dummy variable are reported in Table Four. The
coefficients for the full models are not reported due to space constraints but
may be obtained from the authors. Only two of the legal systems produce
statistically significant effects when included individually in the personal
integrity model: the Civil, Muslim, and Customary Mixed system (coefficient
of .25) and the Muslim, Civil, and Common Law Mixed system (coefficient
of .36). The direction of the coefficient suggests that these systems are more
likely to produce greater human rights abuse than the other system types,
with the difference produced in abuse scores being about one-fourth to
one-third of one level.
In order to further test the hypothesis that common law systems are more
likely to have better human rights, we tested a variable that controlled for any
state with a common law component and one that controlled for any state
with a civil law component. These were each tested individually in the full
model. The common law component produced a negative effect (-.03) on
human rights abuse but was not statistically significant. However, the civil
law produced a small positive effect (.06) that was marginally statistically
2007
Empirical Examination of Colonial Influences on Human Rights
1087
TABLE 3
Level of Personal Integrity Abuse by Legal System
LEVEL
% Level
Cum %
Civil
% Level
Cum %
Civil/
Common
% Level
Cum %
Civil/
Customary
1
21.7
21.7
51.9
51.9
7.9
7.9
2
41.3
63.0
24.0
75.9
43.0
50.9
3
19.6
82.6
6.7
82.6
28.1
79.0
4
12.0
94.6
12.5
95.1
13.9
92.9
5
5.4 100.0
4.8
99.9
7.1 100.0
Mean
2.38
2.94
2.69
LEVEL
% Level
Cum %
% Level
Cum %
Muslim
Common/
Civil
Customary
% Level
Civil/
Muslim/
Customary
1
14.9
14.9
3.6
3.6
12.5
2
53.2
68.1
40.4
44.0
45.8
3
27.7
95.8
29.8
73.8
33.3
4
4.3 100.1
16.1
89.9
8.3
5
0.0 100.1
10.1 100.0
0.0
Mean
2.21
2.89
2.38
LEVEL
% Level
Cum %
Civil/
Common/
Customary
% Level
Cum %
Common/
Muslim/
Customary
Cum %
% Level
12.5
58.3
91.6
99.9
99.9
Cum %
Muslim/
Civil/
1
0.0
0.0
6.9
6.9
0.0
0.0
2
51.5
51.5
45.8
52.7
0.0
0.0
3
36.4
87.9
33.3
86.0
36.0
36.0
4
10.6
98.5
13.9
99.9
36.0
72.00
5
1.5 100.0
0.0
99.9
28.0 100.0
Mean
2.62
2.54
3.92
Source: data generated by authors
significant (at the .10 level). As a whole, the results produce rather limited
evidence of a harmful effect by civil code systems.
In attempt to further examine the differences in colonial legacies in SubSaharan Africa, we test Henry Carey’s hypothesis that British colonies would
be more likely to develop democratic institutions such as an independent
judiciary. Table Five examines the level of formal judicial independence in
the British-legacy set of countries and the French-legacy set of countries.
HUMAN RIGHTS QUARTERLY
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TABLE 4
Personal Integrity Model 1997–2001 (Coefficients produced
in separate and fully controlled model)
Coefficient
Panel Corrected SE
p
Civil Law System
Civil and Common Law Mixed System
Civil and Customary Law Mixed System
Muslim and Civil Law Mixed System
Common and Customary Law Mixed System
Civil Muslim and Customary Law Mixed System
Civil Common and Customary Law Mixed System
Common Muslim and Customary Law Mixed System
Muslim Civil and Common Law Mixed System
.04
-.08
.01
-.09
-.04
.25
.02
-.06
.36
.08
.10
.05
.13
.06
.15
.10
.08
.13
.30
.19
.43
.23
.25
.04
.42
.23
.003
All Systems with Civil Law Component
All Systems with Common Law Component
.06
-.03
.04
.04
.10
.24
Source: data generated by authors.
TABLE 5
Judicial Independence Index
% Level
-2
-1
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Chi- Sq
MEAN
British
0
3.7
25.8
0.0
2.5
6.9
9.0
0.0
8.0
13.0
12.0
2.7
4.3
0.0
4.8
1.6
2.7
0.5
1.6
Cum %
% Level
Cum %
0
3.7
29.5
29.5
32.0
38.9
47.9
47.9
55.9
68.9
80.9
87.9
87.9
87.9
92.7
94.3
97
97.5
99.1
French
0
0
34
4.0
3.7
3.3
3.0
0.0
3.3
1.9
10.0
13.5
3.5
6.5
5.4
1.4
6.8
0
0
0
0
34
38.0
41.7
45.0
48.0
48.0
51.3
53.2
63.2
80.2
80.2
86.7
92.1
93.5
100.3
100.3
100.3
162.7
P <. 0001
5.1
Source: data generated by authors.
241.7 P < .0001
5.5
2007
Empirical Examination of Colonial Influences on Human Rights
1089
As described in the previous section, we are examining nine elements of
judicial independence. For the analysis reported here, we constructed an
additive index to measure the overall level of constitutional provision for
judicial independence. The scale ranges from -1 to 18.
The analysis here does not support Carey’s hypothesis. Instead, we find
that on average the French-legacy set of countries achieve a higher score on
judicial independence than the British ones: 5.5 percent compared to 5.1
percent. When we examine the data closely several patterns emerge. First,
only the British-legacy countries earn negative scores on formal judicial independence, meaning the constitutions provide some institution other than
the judiciary the power of constitutional review and/or the constitutions
explicitly allow or endorse the use of exceptional courts. Second, a larger
percentage of French-legacy country-years have no constitutional provisions
for judicial independence than the British set: 34 percent compared to 29.5
percent. However, we also see that approximately 69 percent of the Britishlegacy countries earn scores of eight or less, compared to only 53 percent of
the French set. Over 37 percent of the French-legacy countries earn scores
of 10 or more, while only 18 percent of the British-legacy countries do.
When we examine the constitutional provisions for judicial independence
individually, again, we can identify some clear patterns. These data are reported in Table Six. First, one of the more interesting patterns to emerge is
the lack of formal provision for judicial independence in the former British
colonies—in only 10 percent of the country-years is there any level of provision, compared to over 58 percent of the former French colonies that have
some level of formal provision for judicial review. A second stark contrast is
the ban against exceptional courts. In all country-years in the French-legacy
countries, we find such a ban, but in the British-legacy countries only 20
percent have the exceptional court ban. Another contrast is that over 65
percent of the former French colonies have no provision for protected terms
for the judiciary, compared to only 35 percent of the former British colonies. On the other hand, 90 percent of the former British colonies have no
provision for the courts’ decisions to be final and not subject to revision,
compared to only 62 percent of the French-legacy countries. We test the
hypothesis that these institutions behave differently in the former colonies
later in the article.
In our next attempt to further distinguish the colonial legacies in subSaharan Africa, we examine the states of emergencies clauses and test the
hypothesis that former British colonies would have more specific constitutional checks during states of emergencies. As with the elements of judicial
independence, we also created an additive index to measure the degree
to which the constitutional provisions protected against government abuse
during states of emergency. The index ranges from -2 to 8. These data are
reported in Table Seven. The average score for both sets of countries is quite
HUMAN RIGHTS QUARTERLY
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TABLE 6
Formal Judicial Independence
Judicial Review Provision
2
1
0
-1
% Level
British
Cum %
% Level
French
Cum %
3.2
6.9
89.9
0
3.2
10.1
100
100
49.8
8.6
41.6
0
49.8
58.4
100
100
Cum %
% Level
French
Cum %
26.1
9.4
65.5
26.1
35.5
101
Guaranteed Terms Provision
% Level
British
2
1
0
61.44
3.2
35.4
61.44
64.64
100.04
Finality of Decision Provision
2
1
0
% Level
British
Cum %
% Level
French
Cum %
10.1
0.5
89.4
10.1
10.6
100
37.4
0
62.6
37.4
37.4
100
% Level
British
Cum %
% Level
French
Cum %
11.2
9.3
79.5
11.2
20.5
100
30.5
11.2
58.4
Exclusive Authority Provision
2
1
0
30.5
41.7
100.1
Constitutional Ban Against Exceptional Courts
2
1
0
1
% Level
British
Cum %
% Level
French
Cum %
0
0
92.8
7.2
0
0
92.8
100
2.6
97.4
0
0
2.6
100
100
100
% Level
British
Cum %
% Level
French
Cum %
14.1
0
85.9
14.1
14.1
100
0.2
0
99.8
0.2
0.2
100
100
100
Fiscal Autonomy Provision
2
1
0
2007
Empirical Examination of Colonial Influences on Human Rights
Separation of Powers Provision
2
1
0
% Level
British
Cum %
% Level
French
Cum %
31.1
10.4
58.5
31.1
41.5
100
40.7
13.5
45.8
40.7
54.2
100
% Level
British
Cum %
% Level
French
Cum %
50.5
0
49.5
16.5
50.5
100
16.5
12.8
70.7
16.5
29.3
100
% Level
British
Cum %
% Level
French
Cum %
60.1
3.7
36.2
16.5
63.8
100
48.1
0
51.9
48.1
48.1
100
Enumerated Qualifications Provision
2
1
0
Hierarchical Structure
2
1
0
Source: data generated by authors.
TABLE 7
State of Emergency Index
MEAN
-2
-1
0
1
2
3
4
5
6
% Level
British
Cum %
0.0
3.5
51.6
6.7
17.29
5.3
14.6
1.1
0.0
0.0
3.5
55.1
61.8
79.1
84.4
98.9
100.0
100.0
1.3
Source: data generated by authors
% Level
French
Cum %
0.0
10.0
32.3
6.3
17.4
27.9
1.4
2.1
2.6
0.0
00.0
42.3
48.6
66.0
94.0
95.3
97.4
100.0
1.5
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TABLE 8
Provisions for States of Emergency
Legislative Declaration Provision
% Level
British
2
1
0
-1
6.1
19.7
39.4
34.8
Cum %
6.1
25.8
65.2
100.0
% Level
French
54.9
29.5
13.0
2.6
Cum %
54.9
84.4
97.4
100.0
Limited Duration Provision
% Level
British
2
1
0
38.0
19.2
42.8
Cum %
38.0
57.2
100.0
% Level
French
45.8
2.8
51.4
Cum %
45.8
48.6
100.0
Ban against Dissolving Legislature
2
1
0
-1
% Level
British
Cum %
% Level
French
0.0
16.7
83.2
0.0
0.0
16.7
99.9
99.9
29.1
17.7
53.3
0.0
Cum %
% Level
French
Cum %
29.1
46.8
100.1
100.1
List of Derogated Rights Provision
% Level
British
1
0
91.5
8.5
91.5
100.0
1.6
98.4
Cum %
1.6
100.0
Source: data generated by authors
low, with British-legacy states having the lower mean; 1.3 compared to 1.5
for French-legacy states. In over half of the country-years, British-legacy
states have no constitutional protections or checks. Less than one-third of
the country-years French-legacy states do not have these protections. In 34
percent of the country-years, French-legacy states have scores of three or
higher, compared to only 12 percent of the British-legacy states.
As with elements of judicial independence, we see rather stark differences in the provisions adopted for states of emergencies between former
British and French colonies. The most drastic difference is in the adopted
2007
Empirical Examination of Colonial Influences on Human Rights
1093
list of derogable rights. In 92 percent of the country-years of British-legacy
states, we find such lists, compared to only 1.6 percent in the Frenchlegacy states. Interestingly, it is in the former French colonies that we find
the strongest provision for legislative rather than executive declaration of
states of emergencies: in the former French colonies we find some level of
provision 84 percent of the country-years (55 percent have the highest level
of protection) compared to only 26 percent in the former British colonies
(where only 6 percent have the highest level of protection).
Again, it is interesting that it is the former French colonies that have
the stronger protection for the legislature during states of emergency rather
than the British ones: 47 percent of the French compared to 17 percent of
the British-legacy states have bans against dissolving the legislature during
a state of emergency. Constitutional provision for limited duration of states
emergency are not as far apart: 57 percent for British and 48 percent for
French. Overall, the evidence suggests that counter to our hypothesis Frenchlegacy states have stronger protections during states of emergency.
Next, we returned to the multivariate explanatory human rights model.
We tested whether the impact on French or British colonial legacy remained
when we controlled for the provisions for judicial independence and states
of emergency. Table Nine reports these results. The impact of the colonial
legacies remain statistically significant but the size of their impact decreases
slightly: the coefficient for French colonial legacy is reduced from -.24 to
-.22 and the coefficient for British colonial legacy is reduced from -.19 to
-.16. None of the elements of judicial independence produce a statistically
significant effect on human rights behavior of this nature.
However, we must keep in mind the limitation of our model in that it
measures only formal provisions for judicial independence and does not
measure the level to which this status is actually achieved in the various
states. Thus, the failure to observe an influence may result from our inability
to measure judicial independence directly at this time. Additionally, as AnNai’im has cautioned, these conditions and principles are likely to develop
only through a process of trial and error, over an extended period of time.64
The time period under study here may not yet be long enough to allow for
this process to be observed.
Three of the four provisions for states of emergency are statistically
significant. The provision for legislative declaration of states of emergency
produces a coefficient of -.06 and the provision for limited duration of the
state of emergency produces a coefficient of -.16. These statistics suggest
that going from a constitution with no provision for either clause to one with
full provision of both clauses would likely decrease the country’s human
rights abuse score by .88, almost one level on the five-point scale. The list
64.
An-na’im, supra note 2, at 7–8.
1094
HUMAN RIGHTS QUARTERLY
Vol. 29
TABLE 9
Personal Integrity Model 1997–2001
Lagged Personal Integrity Abuse
French Colonial Legacy
British Colonial Legacy
Guaranteed Terms
Finality of Decisions
Exclusive Authority
Ban against Exceptional Courts
Fiscal Autonomy
Separation of Powers
Enumerated Qualifications
Judicial Review
Hierarchical Structure
Legislative Declaration
Limited Duration
Ban against Dissolving Legislature
List of Derogated Rights
Regulation of Executive Recruitment
Competitiveness of Executive Recruitment
Openness of Executive Recruitment
Constraints of Executive
Economic Standing
Military Regime
Population Size
Constant
R-squared
Wald Chi-sq
Coefficient
Panel Corrected SE
0.59
-0.22
-0.16
0.01
0.02
-0.02
-0.01
-0.02
-0.03
0.04
0.06
0.01
-0.06
-0.16
0.05
0.35
-0.03
-0.09
-0.01
0.04
-0.02
-0.01
0.11
-0.39
0.04
0.08
0.08
0.04
0.04
0.06
0.07
0.06
0.04
0.04
0.05
0.03
0.04
0.04
0.05
0.13
0.06
0.07
0.02
0.03
0.02
0.01
0.02
0.27
p
0.0001
0.002
0.03
0.37
0.33
0.36
0.46
0.38
0.22
0.11
0.12
0.33
0.04
0.0001
0.14
0.004
0.34
0.08
0.47
0.08
0.08
0.28
0.0001
0.07
57.0
1969.56
p < .0001
Source: data generated by authors.
of non-derogable rights produces a harmful effect on states human rights
behavior as we have seen in past studies: coefficient of .35.
Next, we more specifically test whether elements of judicial independence and states of emergency provisions work better in British-legacy
states than French ones. These results are reported in Table Ten. A couple of
interesting patterns emerge. Overall, the elements of judicial independence
have little impact on human rights abuse: only two elements are statistically
significant in each set of countries. Judicial review is the only shared element but its effects are in opposite directions. In the former British colonies,
the provision for guaranteed terms produces a moderate negative impact
(-.30) on human rights abuse, whereas in the former French colonies the
provision for finality of judicial decisions produces a smaller but negative
impact (-.16). Interestingly, very few former French colonies had provision
for guaranteed terms, only 35 percent compared to 65 percent of former
British
Coefficient
French
Panel Corrected SE
p
Coefficient
Panel Corrected SE
0.42
0.24
0.06
0.03
0.0001
0.0001
0.07
0.21
0.38
0.46
0.03
0.32
0.32
0.40
0.30
0.01
0.0001
0.40
0.02
0.01
0.01
p
Empirical Examination of Colonial Influences on Human Rights
Source: data generated by authors.
Lagged Personal Integrity Abuse
0.49
0.07
0.0001
0.48
0.05
Guaranteed Terms
-0.30
0.16
0.03
0.01
0.06
Finality of Decisions
-0.01
0.08
0.43
-0.16
0.08
Exclusive Authority
-0.12
0.14
0.19
0.30
0.11
Ban against Exceptional Courts
-0.08
0.23
0.37
1.15
0.44
Fiscal Autonomy
-0.09
0.11
0.22 dropped
Separation of Powers
-0.07
0.10
0.25
-0.02
0.08
Enumerated Qualifications
0.16
0.08
0.03
0.07
0.07
Judicial Review
0.59
0.16
0.0001
-0.12
0.08
Hierarchical Structure
0.10
0.08
0.12
0.11
0.06
Legislative Declaration
-0.17
0.07
0.01
-0.16
0.05
Limited Duration
0.04
0.11
0.35
0.24
0.07
Ban against Dissolving Legislature
-0.11
0.23
0.32
0.14
0.09
List of Derogated Rights
0.38
0.45
0.20
0.28
0.35
Regulation of Executive Recruitment
-0.26
0.17
0.06
-0.03
0.11
Competitiveness of Executive Recruitment
0.27
0.11
0.21
0.01
0.13
Openness of Executive Recruitment
0.01
0.07
0.46
-0.07
0.03
Constraints of Executive
0.07
0.05
0.09
0.03
0.06
Economic Standing
-0.01
0.03
0.49
-0.01
0.02
Military Regime
0.04
0.17
0.40
0.03
0.13
Population Size
0.12
0.05
0.01
-0.02
0.04
Constant
-0.15
0.79
0.42
1.87
0.71
R-squared
0.64
0.47
Wald Chi-sq
1811.49
p < .0001 627.17
P < .0001
TABLE 10
Personal Integrity Model 1997–2001
2007
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Vol. 29
British colonies and very few former British colonies have provisions for
finality in decision making: 11 percent compared to 37 percent of the former French colonies.
The most interesting difference is in regard to judicial review, which was
tested at the higher two-tail level of statistical significance because of the
strong alternative hypothesis. This provision produces a large positive impact
(.59) in the former British colonies, which suggests that a change from no
provision of judicial review to full provision would increase human rights
abuse by approximately one and one-quarter of a level. In French-legacy
countries, we see the opposite effect but in a smaller magnitude—coefficient of -.16, which would suggest a similar change in constitutions would
improve abuse scores by about one-third of a level.
In regard to the states of emergency provisions, we find that only one
provision works across both sets of countries: the provision that requires a
legislative (rather than executive) declaration of a state of emergency. The
impact is negative and moderate in size (-17. and -.16). In the former French
colonies, the provision that delineates the duration of a state of emergency
has the unintended harmful effect of increasing the probability of abuse
(.24). We have found this effect to happen in the global set of countries.
The polity executive constraint measures behave differently in the British
and French sets of countries. In the British-legacy countries, regulation of
executive recruitment produces a moderate negative impact, as expected
(-.26) and in the French legacy countries, openness of executive recruitment
produces a small negative impact (-.07). Overall, the models perform better
in British legacy countries, explaining 64 percent of the variation in human
rights abuse compared to only 47 percent in the French legacy countries.
VII.Concluding Remarks
This article has examined the extent to which the British and French colonial legacies influence the human rights behavior of post-colonial African
states. Our study was influenced by earlier research and by theorists that
suggest that British and French colonialism left different legacies for their
former colonies. We have examined three areas where the literature suggests
different colonial experiences for former British and French colonies: legal
systems, formal provisions for judicial independence, and emergency powers.
Because of their close links to human rights and the rule of law, we wanted
to find out whether these elements can account for differences in human
rights practices among former French and British African colonies.
Our findings show very little support that different colonial legacies in
those three areas affect the level of state abuse of personal integrity in subSaharan Africa. We find no solid evidence, for example, that common law
2007
Empirical Examination of Colonial Influences on Human Rights
1097
system countries have better human rights behavior than civil code system
countries. Nor is there any support for the propositions that former French
colonies would have less constitutional provisions for judicial independence
and checks against the executive during times of emergency than English
colonies. Indeed, contrary to expectations, it is the French-legacy states that
have stronger protections for emergency powers, suggesting perhaps recognition of the broad powers of the president in the bequeathed French political
system and the need to curtail some of those powers. Likewise, we find little
evidence that these elements affect their human rights behavior.
Again, we want to make clear what our objective was in this study. We
did not, and would not, suggest that colonialism has not affected either directly or indirectly many of the problems and practices of the postcolonial
state in Africa. There is more than enough documentation that suggests otherwise. What we sought out to do was examine whether British and French
colonialism left different legacies in sub-Saharan Africa, and whether these
legacies affect post-colonial African states’ human rights behavior. What
our findings show is that there is a limit to which the impact of colonialism on the behaviors of the postcolonial African state can and should be
attributed to differences in the British and French colonial legacies. At least
in the areas of human rights, those differences matter very little. In a way,
this bolsters the argument of scholars such as Prempeh, who have suggested
that formal legal systems and constitutional provisions may have little effect
on the behavior of African states.
Still, there is one significant finding from this study, and that is the evidence that former French colonies have better human rights records than
former English colonies. As our work suggests this difference cannot be
accounted for by colonial legacies in legal systems and constitutionalism,
future studies should continue to seek other explanations, perhaps such as
the heterogeneity of ethnicity, the process through which the states became
independent, the level of civil and international war and other domestic
threats, and level external support (such as foreign aid) and foreign interference.