Berlin - 1884
On 15 November 1884, delegates from fourteen nations gathered in Berlin for a landmark conference. Thirteen were European powers. The fourteenth was the United States of America, at the table for such a multilateral conference together with the great European powers for the first time. Their host was Otto Von Bismarck, the German Chancellor who by many accounts was a remarkable character. Students of European history cannot forget the name, for it looms large in the history of 19th century Europe. He was, after all, the architect of the German Empire, the man who masterminded the unification of Germany.
The gathering in Berlin, which lasted for three months until 26 February 1885, would have profound implications for a continent and a people who were not even represented at the table. It was formally known as the Berlin West Africa Conference, but it is more commonly known as the Berlin Conference. The subject of the Berlin Conference was the continent of Africa and in particular, its partition among the great European powers. Essentially, the purpose of the conference was to manage the process of colonisation of Africa which was already underway. It had become apparent that without some careful management, the “Scramble for Africa” as it was described by the British press at the time, could lead to armed conflict between the great European powers. Berlin sought to lay out the ground rules of the colonial project. Of the fourteen nations, the great powers with the most influence and appetite for colonies in Africa were Britain, Portugal, France and Germany.
There were other purported concerns such as the prohibition of the slave trade in Africa, which was then still rampant in parts of the continent and the seemingly altruistic project of “furthering the moral and material well-being of the native populations” as described in the final resolutions. Another key interest, in favour of the European powers, was the promotion of free trade in the Congo basin, including guaranteeing free navigation of the Congo and Niger Rivers. The Portuguese, whose request had prompted Bismarck to convene the conference, had already laid a special claim to the mouth of the Congo River. Nevertheless, the most important purpose was the management of the process of colonisation.
In those 3 months, the African continent was cut up into different states whose boundaries paid little to no regard to national, ethnic, cultural or linguistic nuances among the native African population. This was not surprising. After all, the native Africans had not been invited to the party in Berlin. Artificial boundaries were drawn up, either dividing communities or merging disparate communities into new nations to be ruled by force and often egregious violence.
The Congo Free State, ruled by an iron fist by King Leopold II of Belgium as his personal property is a perfect example of the brutality of early colonial rule. The new country lost more than half its population during King Leopold’s notoriously brutal reign. The brutality of the regime is aptly captured by scholars H. J. de Blij and Peter O. Muller in their book Geography: Realms, Regions and Concepts (2003). According to these scholars, King Leopold II “embarked on a campaign of ruthless exploitation. His enforcers mobilized almost the entire Congolese populations to gather rubber, kill elephants for their ivory, and build public works to improve export routes. For failing to meet production quotes, entire communities were massacred. Killing and maiming became routine in a colony in which horror was the only common denominator. After the impact of the slave trade, King Leopold's reign of terror was Africa's most severe demographic disaster. By the time it ended, after a growing outcry around the world, as many as 10 million Congolese had been murdered”. This pattern of brutality was apparent in most of the colonies, where the native Africans were treated as subjects rather than citizens.
The impact of European imposition of its conception of Westphalian sovereignty on the natives of Africa has had profound and enduring consequences. As stated by de Blij and Muller, “The colonial powers superimposed their domains on the African Continent. By the time Africa regained its independence after the late 1950s, the realm had acquired a legacy of political fragmentation that could neither be eliminated nor made to operate satisfactorily. The African politico-geographical map is thus a permanent liability that resulted from the three months of ignorant, greedy acquisitiveness during a period when Europe's search for minerals and markets had become insatiable.” The map of Africa today, with its straight geometrical lines cutting across and dividing communities, is largely a product of the Berlin Conference.
Berlin as ideological justification
It is fashionable nowadays to make reference to the rule of law. One of the key elements of this principle is that conduct must be in accordance with the law – the principle of legality. The Berlin Conference represents an important moment in the course of history, as the great European powers tried to provide both an ideological and legal basis for the colonial project. Indeed, a major outcome of the Berlin Conference was the conclusion of the General Act of the Berlin Conference, 26 February 1885, C 4361 1885 (hereafter, a General Act), a multilateral agreement which was ratified by all major colonial powers. To put it crudely, the colonial project was undertaken pursuant to and under a multi-lateral agreement. Among other things, the General Act provided for conditions for the acquisition of territory by colonial powers. In essence, the Berlin Conference and its General Act provided the legal and political framework for the colonisation of Africa.
Significantly, the Berlin Conference paid no regard to the claims to sovereignty of native Africans. One of the foremost legal scholars on this subject, Tony Anghie has described the Berlin Conference as having “transformed Africa into a conceptual terra nullius” – in other words, presented the continent as territory that belonged to no one, which meant it could be legitimately claimed by the settlers who took effective occupation of it. In this regard, the Berlin Conference not also provided the ideological foundation of colonial occupation and subsequent rule.
This idea that land in Africa was terra nullius was reaffirmed by the imperial courts in the infamous case of In re Southern Rhodesia (1919). In that landmark case decided in 1919, the Privy Council of the British House of Lords had to decide a question on the ownership of land in the then Southern Rhodesia, which had been occupied by the British in 1890. Did the land belong to the British South Africa Company (BSAC) which had spearheaded the colonial project in the territory and administered it since 1890? Or did it belong to the British Crown under whose flag the occupation had been executed? A third claim was also submitted on behalf of the African natives. However, this latter claim was promptly dismissed, the land on which they had occupied having been regarded as terra nullius. The Privy Council ruled instead that the land belonged to the Crown. The BSAC was awarded compensation for the costs of its administrative functions.
Some scholars have dismissed the significance of the Berlin conference, arguing that its resolutions were hollow and the clauses of the General Act had no teeth. Still, whatever the weaknesses of the General Act, it is impossible to ignore the symbolism of the conference in the overall colonial project. The fact that it was a gathering of European powers deciding the fate of millions of people on another continent who had no idea of what was going on is perhaps the most remarkable. It might seem unthinkable to most people that such a thing happened and was considered normal. Most people would not imagine this happening in the present day – after all the Berlin Conference happened 133 years ago. However, as this paper argues, the exclusionary nature of the Berlin Conference is not just a relic of a distant history. The continent of Africa and its peoples, now more diverse and mixed than they were in 1884, continue to be excluded from the vast majority of decision-making processes, which often pass through informal netowrks and as "soft law". Berlin is invoked to provide context to the enduring phenomenon of exclusion which the continent continues to suffer. Even in matters of international sport, such as World Cup football, Africa has had to push hard from the margins for greater inclusion.
The purpose of Berlin is to demonstrate that some things that appear new today are hardly new at all, but that in fact there are more continuities and similarities from the past. Take for example, the supposedly altruistic purposes of the Berlin Conference: the General Act makes reference to the objective of ending the Slave Trade and more ambitiously, to ‘further[ing] the moral and material well-being of the native populations’. Yet the colonial rule that followed Berlin was characterised by rampant brutality, inhuman methods and generally callous treatment of the native African population. As already stated, King Leopold II of Belgium was so brutal that it caused an uproar in Europe the pressure of which eventually forced him to hand over authority to the Belgian government, whereupon the Congo Free State became Belgian Congo. Despite the name, there was nothing free in the Congo Free State.
One can draw parallels between the so-called altruism of Berlin and the actual realities of the colonial project and the purported altruism of today’s aid project and the actual realities and effects on Africa’s development. As we shall see later in this paper, while the rich developed nations pride themselves in giving aid to poor developing nations, research is showing that, in fact, more wealth goes the other way round, a phenomenon that has been referred to as “aid in reverse”. Aid is being challenged as a long-term burden for the continent and critics argue that what Africa needs now is more trade. Zambian economist Dambisa Moyo’s work which posits the thesis of “Dead Aid” is one of the most renowned works on this subject.
Free trade and the colonies
It has become fashionable in the last three decades to talk of globalisation and the multiple and complex processes that the term encapsulates. It is presented in most accounts as a more recent phenomenon, one that is fueled by a myriad of factors, including the rapid development in technology, ease of movement and exchange of goods, services and people and breaking down of geographical boundaries. However, for Africa these factors and processes may have assumed new forms, but they are hardly new. Colonialism and the Trans-Atlantic Slave Trade before it had already brought significant collisions between Africans and foreign communities. There is a certain irony that Africans migrating to Europe today are generally shunned and regarded as illegal migrants while Europeans who migrated to Africa during colonialism were not illegal as their movement was legitimate under the General Act of the Berlin Conference. All that was needed was to demonstrate that they had achieved effective occupation in Africa.
Likewise, the contemporary push for global free trade is not new. Indeed, one of the key issues at the Berlin Conference was the assurance of free trade and free navigation along major waterways such as the Congo and Niger Rivers. This “free trade” was of course designed to facilitate exploitation in favour of European industrialists and traders on the continent. A quick look at the elements of the General Act that came out of the Berlin Conference is highly revealing: Its purpose was stated as being to secure “the development of trade and civilization in certain regions in Africa” and provided for permission of all flags (European powers) to have equal access to the African coastline, the prohibition of monopolies, the prohibition of discrimination against foreigners, transmission of goods free of import or transit duties, subject only to reasonable taxation to compensate for necessary expenditure in the interests of trade. These elements are typically what one is likely to find in modern free trade agreements.
However, quite significantly, this “free trade” agreement was negotiated by the great European powers at a multi-lateral conference in the absence of Africans whose resources and territorial space were at stake. As aptly put by law professor, Matthew Craven “It was, after all, a conference purporting to determine the future of Africa in which no African was involved.” The Berlin Conference provides us, at the outset, a trade agreement at which Africa and Africans were excluded. But, has anything changed in this respect? Today, there are multi-lateral conferences that deal with trade issues. There is even a multi-lateral body, the World Trade Organisation, which is dedicated to free trade. A close look at the history of the WTO reveals how Africa has generally played a peripheral role, with the rich Western developed nations and multinational corporations taking centre stage in the formulation of the agreements. Unlike 1884, Africans now have a seat at the table but to what end? Are they there with an equal and influential voice or are they simply making up the numbers, lending legitimacy to these bodies and processes? These are important questions for Africa.
Exclusionary effects of technologies of global governance
Here, it is important for Africa to appreciate how, rather paradoxically, the world has changed but has also remained the same in many ways. This much is evident when one looks at the technologies of global governance that often lurk beyond the view of the ordinary eye. While traditional constitutional images represent a sovereign state from which power emanates and distributed, recent public law scholarship is beginning to uncover an array of technologies of governance which show how non-state actors are increasingly playing an influential role in governance. In other words, this scholarship reminds us not to look at the state as the sole source of power but that there are other non-state actors, both within and outside the territory, which are playing an important role in governance.
In this regard, I have previously written about governance indicators as an important technology of global governance. In that article, when I analysed the down-grading of South Africa’s credit rating following President Jacob Zuma’s controversial cabinet reshuffle, I explained the influential role of credit-rating agencies as key actors in global governance. The indicators they produce are critical technologies of global governance which shape the behaviour and conduct of various actors including states, corporate organisations and individuals. Technologies of governance are also taking new forms and shapes. Another important technology of global governance is governance through informal trans-national networks. These are networks of states or agencies of the state which set rules and standards which affect governance within territories that are traditionally managed by the state.
In the area of financial services regulation, bodies that set and sometimes enforce regulatory rules and standards are largely informal trans-national regulatory networks. Examples of such networks include the Financial Action Task Force, which sets rules against money laundering and terrorist financing; the Basel Committee on Banking Supervision, which sets the rules on minimum capital standards for banks and bank supervision, the Financial Stability Board, a club of central bank governors set up after the global financial crisis in 2007-09, the International Organisation of Securities Commissions (IOSCO), whose multi-lateral memorandum of understanding is an essential instrument for sharing information and assistance between regulatory and law enforcement agencies among signatories. A notable feature of these trans-national networks is that their primary sponsors and controllers are the great Western powers, although they set rules and standards for the rest of the world. African countries, apart from South Africa, are rarely represented on these transnational networks.
While the standards and rules produced by these networks are characterised as informal, voluntary and legally non-binding, the truth is that no country can afford to defy them. For example, non-compliance with the recommendations of the FATF has devastating consequences on the state as it would be classified as “non-cooperating” which leads to severe financial sanctions against its businesses. Therefore, the so-called “soft law” is actually quite hard when it comes to actual application. Yet the FATF comprises of 37 states, the majority and most influential of them are Western powers. Only one African country, South Africa, is part of that powerful network. The rest of the African countries are represented by regional networks, as associate members. 133 years after the Berlin Conference, Africa is still at the margins, on the outside looking in.
All this is before one even looks at the United Nations, which is supposed to be a more democratic and representative institution. For years, Africa has pleaded for a seat on the powerful UN Security Council. The UN is more than 70 years and an entire continent still does not have that representation. At multilateral financial institutions like the World Bank and the International Monetary Fund, the best Africans can hope for is to be Vice President of some division or another, the top posts still be traded between the great European powers and the US. The exclusionary character of these multi-lateral institutions remains as important now as it was more than a century after Africa’s fate was decided by the great European powers without Africa at the table. These days, they are still not at the table, and even when they are, their voice is rendered futile by the sheer force of power dynamics at the global level.
Berlin: Rule of law or Rule by Law?
The Berlin Conference reminds yet again of law’s complicity in the colonial project and its character as a double-edged sword. It also calls upon us to ponder upon the complexities of the rule of law from an historical perspective. As we have already observed, the General Act from the Berlin Conference provided the legal and ideological justification for the political and economic processes of the colonial project. Articles 34 of the General Act provided for mutual notification between the European powers upon taking new possessions in Africa, while Article 35 made provision to ensure that such occupation was effective. These were the key ground rules of the colonial project. Anything that conformed to those terms would qualify as being in terms of the rule of law.
However, this could not possibly be the rule of law in the sense expounded so eloquently in recent years by renowned English jurist, Lord Bingham. For him, the rule of law is substantive in character. This substantive conception of the rule of law means it is made up of a number of principles, one of which is that the law must conform to and protect fundamental rights and freedoms. The General Act of the Berlin Conference, concluded as it was without any input from the Africans whose rights it clearly disregarded and violated could not possibly satisfy the Bingham test of the rule of law. The colonial project and the General Act under which it was carried out would be contrary to the rule of law. This view would have serious implications on the legality of the rights and acquisitions made under the colonial project.
Nevertheless, there is another conception of the rule of law, the formal conception of the rule of law, most prominently articulated by distinguished legal scholar, Professor Joseph Raz. Under the formal conception of the rule law, it matters not whether the law protects fundamental rights and freedoms. As long as the law is properly promulgated in terms of accepted rules, it is the applicable law and anything done under it is lawful and in compliance with the rule of law. On this basis, assuming the General Act was concluded in accordance with generally accepted rules at the time of its signing, it was proper and lawful and anything done on its terms satisfied the rule of law. The fact that it violated fundamental rights and freedoms of Africans would be irrelevant. On this basis therefore, so the argument goes, the Berlin Conference and the General Act provided the ideological and legal justification for the colonial project. Those who acted on its terms believed they were acting lawfully and legitimately and rights acquired under it would be lawful.
All this is important for the decolonisation project. The decolonisation project is required to comply with the substantive rule of law, which respects fundamental rights and freedoms. This is so, notwithstanding the fact that this reasoning is superimposed upon a rationality that paid no regard whatsoever to fundamental rights and freedoms during the colonial project. This presents a clash whereby the nationalists refer to rights acquired under colonialism as ill-gotten gains while the right-holders believe they hold lawful rights that deserve protection. This indeed, was at the centre of the conflicts over land between the Zimbabwean government and the white commercial landowners. South Africa and Namibia face similar questions. How to deal with this in a productive way with minimal costs is a challenge that confronts these countries reminding us yet again that the past is intimately connected to the present and the future.
Addis Ababa 1963
On 22 May 1963, leaders from 32 African nations and delegates representing liberation movements in countries still under colonial rule gathered in the Ethiopian capital, Addis Ababa. Their host was the diminutive ruler of Ethiopia, Emperor Haile Selassie. Three days later, on 25 May 1963, they agreed to establish a Pan African multi-lateral organisation, to be known as the Organisation of African Unity (OAU). It was a landmark moment in the history of the continent. For the first time, Africans from across the entire continent were gathered together to chart a common purpose. The man who had convened the Berlin Conference had the distinction of having been the architect of Germany’s unification. Selassie and his peers were faced with the task of unifying the African continent.
The conference in Addis Ababa was preceded by a series of gatherings, most of them in the Ghanaian capital, Accra, with the charismatic Kwame Nkrumah as the generous host. Kwame Nkrumah had already earned a place in history as the first President of the first country in Sub-Saharan Africa to gain independence from colonial rule. 78 years after the Berlin Conference, the Africans were at their own table trying to chart their own course. Yet it would be naïve to assume that physical absence of the great European powers in Addis Ababa also signified the absence of their influence. In fact, as events unfolded, it was evident that the colonial project was still pervasive and influential, albeit in less obvious ways. History records that the outcome of Addis Ababa was a watered-down version of what its most vocal proponents had hoped for. All this was on account of the ideological differences between the newly independent African states which partly had to do with their different relationships with their former colonizers.
Nkrumah, the foremost and most vocal advocate preferred a united African state. When Ghana attained independence he actively supported liberation movements in other African countries. In his view, “the independence of Ghana is meaningless unless it is linked up with the total liberation of the continent.” However, Nkrumah’s vision of a united African state was considered too radical by some of his contemporaries. In the end there were different ideological blocs in the run-up to the gathering in Addis Ababa. There was the so-called “Casablanca Group” which preferred radical and total integration of Africa. Morocco, Ghana, Algeria, Guinea, Mali, Libya and Egypt were part of this group. There was also the “Monrovia Group” which preferred a more moderate, middle-of the-road approach so that integration would take place incrementally rather than immediately. Countries like Liberia Ethiopia, Nigeria, Tunisia, Sudan and Togo were in this group. The third was the so-called “Brazzaville Group” which comprising mainly of former French colonies (the Francophone countries). These former French countries still had strong ties to France and were heavily influenced by its interests. Senegal and the Ivory Coast were the leaders of this group.
Thus already, there were divisions among the Africans at the very outset. The major stumbling blocks were the fear of losing sovereignty and territorial integrity as well as the pervasive influence of the former European powers, particularly France, which retained major control of its former colonies. There would be no complete unification of Africa from the start, but the idea was that it would take place on an incremental basis till full unity was reached and there was a Union of African States. It was not what Nkrumah and other passionate supporters of total unity had hoped to achieve. What emerged was a weaker compromise with some severe limitations.
Addis Ababa as ideological justification
This difficult birth notwithstanding, the formation of the OAU was an important milestone in the history of the continent. If Berlin provided the ideological justification for the colonial project, Addis Ababa provided reaffirmation of the ideological justification of the decolonisation project. Just as Berlin had not started the colonial project, Addis Ababa did not start the decolonisation: both conferences reaffirmed and intensified on-going processes.
In part, Addis Ababa derived its ideological roots from the 19th century Pan-Africanist movement among Black intellectuals in the United States and the Caribbean. These intellectuals, who recognised and were immensely proud of their African heritage, believed it was necessary to establish a united and independent Black African nation that was capable of self-determination and promoting Black African civilisation. They sought to promote the spirit of Pan-Africanism through their work, drawing links between Blacks in the US who had been removed from the continent during the Trans-Atlantic Slave Trade and Africa. Some of the better known scholars include W.E.B. Du Bois, a staunch Pan-Africanist who provided robust intellectual backing for Pan Africanism. In his view, Africa’s problems were strongly tied to colonialism. Others like Marcus Garvey went as far as encouraging Black Africans to return to the African continent.
However, on the continent the formation of the OAU was spearheaded by a new crop of intellectuals and leaders, the likes of Nkrumah, Julius Nyerere, Sékou Touré, Kenneth Kaunda and others who took up and advocated the philosophy of African unity and Pan-Africanism. One of the key goals was the complete rejection of colonialism and exploitation of Africa and the promotion of democracy and unification of Africans. They talked about economic independence and positive use of the continent’s natural resources. They targeted the last bastions of colonial rule such as Rhodesia, South Africa, South West Africa, Angola, and Mozambique.
The principle of non-interference
The Achilles’ heel of the OAU was embedded in its principle of “positive neutrality” which essentially meant non-interference in internal affairs of member states. It may have been well meant given the fears of the time, but it also created a huge moral hazard. The principle of non-interference came at a huge cost to the organisation and the continent. It meant bad behaviour within member states went unchecked by peers. It meant coups, political instability, dictatorship, human rights violations, genocides, etc took place without intervention or review from the organisation or peers. Indeed, it was ironic that some of the founding fathers of the OAU, like Nkrumah were overthrown in illegal coups but the organisation their founded could do nothing about it.
Further, some of these founding fathers established authoritarian regimes which violated fundamental rights and freedoms of the people but the OAU could do nothing about it. The OAU largely failed to deal with major crises on the continent. The 1994 Rwandan Genocide which happened on its doorstep was probably one of the greatest failings as the OAU stood by while more than a million people died. It was ironic that this principle of non-interference was a reaffirmation of the Westphalian notion of the state and sovereignty – itself an indirect product of the Berlin Conference and colonialism whose model of the state had been superimposed upon the African continent. Having been boxed in by Berlin and colonialism, the Africans were unable to get out of it and free themselves. Instead, the leaders made effective use of this model to consolidate their power, creating authoritarian regimes which were protected from peer review by the principle of non-interference. Unsurprisingly, the OAU attracted all sorts of labels, among them that it was a no more than a club of dictators.
Exceptions were when individual leaders, such as Julius Nyerere led Tanzanian troops in 1979 to topple Idi Amin, the Ugandan dictator. Otherwise the OAU failed to develop effective systems to prevent or resolve conflicts or keep errant leaders in check. Its system of rotational leadership meant even the murderous dictators, such as Idi Amin, Mobutu Sese Seko, Mengistu Haile Mariam, etc chaired the organisation. The Cold War dynamics, in which African states were aligned to one bloc or the other also played a part as the major powers created client states on the continent. Radical and promising leaders who had a vision for a united and independent Africa, such as Patrice Lumumba, Thomas Sankara and even Nkrumah were either removed through sponsored coups or assassinated.
Furthermore, as most African countries remained dependent on aid from former colonial powers and other Western countries, their voices were weak and compromised. Indeed, some of them could not even pay up their subscriptions to the OAU, which became dependent on external funding. This over-reliance on Western funding seriously undermined the confidence and independence of the organisation. How could it seriously assert its independence and position when it was funded by the same powers against whom it was supposed to make those assertions? This remains a problem even though the OAU has since transformed into the African Union. It is more than symbolic that the AU could not fund the building of its own headquarters, which is a gift from the Chinese, who in recent years, have become the most influential external power operating in Africa. 133 years after the European powers gathered in Berlin to decide the fate of Africa, the fate of Africa is presently being dictated from Beijing by the Chinese. The only constant is that the Africans largely have little say or influence upon their own fate.
The OAU’s weaknesses were indeed eventually acknowledged by the members, which recognised that with the end of overt colonial rule, the fight was now for economic independence. This required a different Charter, structure and tools hence the dissolution of the OAU and the formation of the AU in 2002. This does not mean that the weaknesses that affected the OAU have been overcome. Like its predecessor, the AU continues to be hamstrung by poor funding by its members and a continuing inability or reluctance to prevent or solve crises within member states. The hangover of the principle of non-interference continues to stifle its approach to challenges in member states. These failures to intervene have meant European countries such as France have continued to play an influential role in the affairs of most Francophone countries, regularly sending troops to handle crisis situations, even though these interventions have left countries in a worse state, with the disaster in Libya being a supreme example.
However, it would be unfair to focus only on the weaknesses and failings of the OAU. A major achievement was the work towards the end of colonial rule in the countries that were still under colonial rule. The major countries which received significant help in the form of solidarity, resources and moral support were Angola, Mozambique, Zimbabwe, South Africa and Namibia. These countries, especially the latter three had the highest concentrations of settler communities and were the last to gain independence. All the nationalists in these countries have acknowledged the huge amount of support received from fellow African countries under the auspices of the OAU’s Liberation Committee. In the case of Zimbabwe’s liberation struggle, apart from neighbouring Zambia, Mozambique and Tanzania which played crucial roles, countries like Algeria, Ghana, Egypt, Nigeria and Ethiopia were pivotal – providing military training and refuge to the nationalists. The struggle for independence was strongly enhanced by the efforts of fellow Africans. This is how the BBC reported the founding of the OAU on 25 May 1963, “Leaders of 32 African nations have set up an organisation that will give them a united voice for the first time in Africa's history. The [Organisation of African Unity]’s primary aim will be to "decolonise" the remaining bastions of white rule in Southern Rhodesia, South Africa, Mozambique and Angola. It plans to support African "freedom fighters" with finance, arms, volunteers and training bases and to close off their airspace to colonial forces.” This it did with a great deal of success.
Aid or Trade?
The future cannot be divorced from the past. Indeed, it would be preposterous to dismiss the history of Africa in analysing its present and future challenges. To use an old cliché, history matters. I have already intimated in this article that there are continuities between the old era and the present. The exclusionary character of the Berlin Conference might appear to be a thing of the past given that Africans now sit at the multilateral conferences as equals, but a closer investigation demonstrates that their role and influence remains peripheral.
Eminent economists and writers have already articulated a cogent thesis that challenges the aid narrative. Economist Dambisa Moyo generated a fascinating and important debate on aid in the last few years when she challenged the purported benefits of Western aid. Calling it “dead aid” Moyo argued that Africa does not need more aid but advocated instead for more trade. More recently, US-based Global Financial Integrity (GFI) and the Centre for Applied Research at the Norwegian School of Economics have reported that contrary to the thesis that poor developing countries receive more aid from the rich developed countries, they actually lose more in reverse due to a myriad of factors. Writing in The Guardian newspaper on the GFI report, Jason Hickel argues that it is poor countries that actually develop rich countries, calling it aid in reverse. The argument is that the “flow of money from rich countries to poor countries pales in comparison to the flow that runs in the other direction”. They cite data from 2012, which demonstrates that “developing countries received a total of $1.3tn, including all aid, investment, and income from abroad. But that same year some $3.3tn flowed out of them. In other words, developing countries sent $2tn more to the rest of the world than they received.” These outflows comprise of interest payments on loans from Western banks – $4.2tn paid since 1980 which outstrips aid funding.
Another source of outflows is the income made on investments by foreign corporations and individuals which is repatriated to Western countries. Other methods such as transfer-pricing of goods and services between units of large Western multinational enterprises located in different countries are also used to facilitate large outflows, often tax-free. This is often done under bilateral agreements which meet legal requirements and are therefore regarded as conforming to the rule of law. If a country failed to observe the terms it would be regarded as violating the rule of law and can be sued. Transnational dispute resolution bodies such as the International Centre for the Settlement of Investment Disputes (ICSID) play an important role as part of the global governance architecture, ensuring that countries stick to their Bilateral Trade Agreements under which Western investors are usually protected. Using these various techniques, some multinational companies operating in developing countries end up paying less taxes than their poorest employees even though they reap enormous profits from their enterprises.
A good example of this phenomenon in recent years is the case of Associated British Foods, a UK multinational with operations in Zambia’s sugar industry. International NGO ActionAid reported in 2013 that ABF which owns Silver Spoon sugar, Ryvita and Primark, has been avoiding taxes in Zambia using a variety of legal instruments and arrangements using tax havens. According to ActionAid, ABF paid over $47.6 million as ‘management fees’ to a subsidiary in Ireland, even though the company’s accounts stated that they had no employees. This was explained as an error, but according to ActionAid, it cost Zambia an estimated $7.4 million in corporate and withholding taxes. In addition, while Zambia Sugar took a bank loan of US$70 million from a US and South African bank, on paper the loan is routed through Ireland with which Zambia has a bilateral agreement under which it is exempt from paying Zambian tax on the interest charges, which has also cost Zambia an estimated US$3 million in withholding taxes. Through complex ownership arrangements in tax havens, the company also managed to reduce the withholding tax it pays on dividends in Zambia by an estimated $7.4 million since 2007. According to ActionAid, “Thanks to this financial engineering, we estimate that Zambia has lost tax revenues of some US$17.7 million (ZK78 billion) since 2007, when ABF took over the Illovo sugar group.”
On paper there might be nothing legally wrong with these arrangements, but the effect is that Western multinational corporations continue to siphon profits from poor developing countries whose bargaining power is low. A full report of the ActionAid report can be found on this link: https://www.actionaid.org.uk/sites/default/files/publications/sweet_nothings.pdf
The relationship between Africa and Western capital continues to be a point of controversy. Colonialism may have formally ended in the 20th century, but economic exploitation via the agency of corporations, often supported by their governments through trade pacts and other mechanisms continues. Here, it is important to recall that the role of capitalist business and corporations in resource exploitation predates colonialism. If anything, the colonial project was one avenue through which capitalist business promoted its interests. In his work Sapiens – A Brief History of Humankind, Yuval Noah Harari provides a cogent explanation of how large corporations ventured into new territories well before their governments took an active interest. Closer to home, it is not a coincidence that Zimbabwe was in fact colonised via the agency of the BSAC, a business owned by British entrepreneur Cecil John Rhodes, who had made his fortune in South Africa’s mines.
Throughout history, it is the economic interests represented by corporations which have spearheaded these projects. It is hardly surprising therefore, that notwithstanding the formal end of colonialism, the core elements of the colonial project remain evident, albeit under the cover of law and apparently normal business practices. Exploitation continues, but much of it under the cover of the rule of law and legitimate business. Companies like ABF will refuse vehemently, as they did after the ActionAid report that they are dodging taxes because they will easily point to the law and argue that their actions are perfectly legal. Yet from the perspective of social justice and fairness, such arguments would hardly stand scrutiny.
Crisis of African leadership
Although there are clear problems for Africa in the architecture of global governance, the continent is weighed down by the burden of inept and selfish leadership which has generally failed to cultivate a liberal democratic political culture. While most countries on the continent hold periodic elections, they are far from establishing stable liberal democracies. Most countries that got independence in the early sixties quickly amended their constitutions to establish one-party states, which soon became authoritarian regimes. It was not until the end of the Cold War, that most began to embrace multi-party politics and started holding elections. However, the advent of elections did not mean they suddenly became liberal democracies. In fact, in most countries the core elements of a liberal democratic order are missing.
In their important paper, Elections without democracy - The rise of competitive authoritarianism, Steven Levitsky and Lucan A. Way, have described most of these as “competitive authoritarian regimes”. In such regimes, according to Levitsky and Way, “formal democratic institutions are widely viewed as the principal means of obtaining and exercising political authority. Incumbents violate those rules so often and to such an extent, however, that the regime fails to meet conventional minimum standards for democracy.”
In these regimes, elections management bodies are not independent, the state media is biased, the courts lack independence, the military and security forces interfere in elections, voters are intimidated and sometimes subjected to violence, and the entire system is not capable of producing a free and fair outcome. Zimbabwe is a typical example of such a regime – regular but severely flawed elections have been held periodically since independence in 1980. In most of them the principles of constitutionalism and the rule of law are alien – the government does what it wants and there are no effective checks and balances. There are some bright lights, but these are more occasional than a regular pattern. The majority are still struggling to come to terms with the core tenets of liberal democracy. A worrying trend is a refusal by African leaders to hand over power to successors. Early this year, President Yahya Jammeh of the Gambia had to be forced to hand over power after losing elections at the end of last year. It was reassuring that the regional body ECOWAS played an influential role in ensuring there was a transition in the tiny West African nation.
Some like President Museveni (Uganda) and President Kagame (Rwanda) have changed constitutional rules to enable them to remain in office beyond their normal terms. The typical reason given in such is that the people want it. That may be the case in some instances, but leadership is sticking to rules and allowing others to lead. There are other challenges, including the politics of patronage, corruption, nepotism, sheer incompetence, exclusion on ethnic, gender and other grounds and various other vices. These weaknesses continue to plague Africa, making it the poorest continent in the world notwithstanding the fact that it probably has the richest natural resources.
The irony is that it was these resources that attracted Europeans to Africa in the 19th century and it is the same resources which continue to attract Western corporations to the continent. It is also the abundance of natural resources that make Africa attractive to the Chinese. The Europeans, Americans and Chinese will continue to covet Africa for the abundance of its resources. However, the African leaders have generally failed to place the interests of the majority ahead of their own partisan interests. Many of them talk the good talk, but that is where it ends. They criticise the West by day and work with it by night. From time to time, when an African leader falls sick, they fly off to Western capitals, leaving their own citizens to contend with the dilapidated hospitals at home. Once they replaced the colonial masters, the African elites stepped into their shoes, occupying their mansions, offices and professions. Their obsession is to retain power and extract as much personal wealth as possible at the expense of the ordinary people.
The cemetery in the Mediterranean
Perhaps the greatest indictment against African leaders is evidenced by the mass migration of young men, women and children who risk their lives every day as they try to cross the Mediterranean Sea to reach Europe. Each year thousands of Africans perish while attempting to cross the treacherous sea aboard old, rickety and over-crowded boats. Just this week the BBC reported that 34 migrants drowned after falling into the sea off the coast of Libya as they tried to reach Italy. This year alone, more than 50,000 migrants have managed to reach Italy using the same route. Early this year, the International Organisation of Migration (IOM) reported that African migrants were being sold off as slaves in Libya, which has been in utter chaos and without a stable government since the NATO-backed overthrow of Muammar Gaddafi in 2011.
For many of these African migrants, reaching Libya and other coastal points on their way to Europe would have been a milestone in a treacherous journey that would have taken them through the hazardous Sahara Desert. Some succumb to thirst, hunger or simply tiredness along the way. That they have to risk their lives, both on land and sea, in order to reach Europe, where they are unwelcome, demonstrates the dire levels of desperation that these young Africans face in their home countries. Just half a century ago, their parents and grandparents were celebrating independence and self-determination, hoping for a bright future. Today, the young men and women can’t wait to leave Africa in search of a better life in, of all places, Europe. The irony of it all is lost on African leaders. Zimbabwe’s Mugabe is oblivious of their part in this calamity to the point that he mocks his fellow citizens who have left for other countries fleeing state-induced poverty and repression.
The external hand
133 years later, Berlin might seem like a distant and remote past, something that is unimaginable in the 21st century. But the situation in the northern coast of Africa reminds us that the spirit of Berlin lives. Six years ago, a NATO-backed force flew into Tripoli and toppled Muammar Gadhafi, who had ruled Libya with an iron fist for 42 years. Early in the campaign, South Africa naively voted in favour of the UN Resolution 1973 imposing a no-fly zone on Libya, a precursor to the NATO-backed invasion. When they realised what they had done they tried to back-track but the horses had already bolted. Tripoli was bombed, Gaddafi was killed but six years later, Libya is a complete mess. There is no stable government. Little fiefdoms run by vigilante groups have emerged across the land. But no one is prepared to take responsibility for it.
There is no doubt that African leadership in the post-colonial phase has left a lot to be desired. Part of it was a lack of knowledge and experience in government upon taking over the management of the state, but much of it had had to do with greed and selfishness. Nevertheless, it is also important to recognise that the end of formal systems of colonialism did not at the same time signal the end of the systems that underpinned that process. Taking various guises, those systems continue to weigh down upon the continent, a problem that is only exacerbated by a crisis of African leadership. An understanding of emerging technologies of global governance demonstrates that Africa and Africans remain outsiders and at best on the margins. What are presented as transnational informal networks are, in fact, influential instruments used by the rich nations to protect and advance their own interests. What is presented as “soft law” is in fact hard-hitting upon the poor developing countries who have little, if any say, in its formulation. The systems of global governance are designed in such a way that key decisions and rules are still being made by the rich and powerful on behalf of, and often at the expense of everyone else.
How have others done it?
Nevertheless, the challenges that the continent has faced over the years, it is important to place a caveat on the impact of the colonial experience. The colonial experience was not exclusive to African countries. There were many other parts of the world that also went through the colonial experience. Countries like Singapore, Malaysia, Brazil and India were also colonised at some point. Some of these countries have grown rapidly over the last half century to become developed countries in their own right. They now sit side by side with the former colonisers, sometimes wielding more powerful voices. They have succeeding notwithstanding the burdens of colonial rule that they too had to carry. There are lessons that African countries can draw from these countries. Colonial experience did not impose a sentence of permanent weakness and impoverishment. With a leadership that understands and is committed to development, it is possible to remove the shackles imposed by the colonial experience.
In fact, some of these countries, like Singapore, have very little in the way of natural resources compared to their African counterparts. In 2007, Zimbabwe discovered large amounts of alluvial diamonds in an area occupied by peasants called Chiadzwa. The peasants were moved away and political elites and their Chinese counterparts moved in. Less than 10 years later, the country has nothing to show for it. In 2016, President Mugabe revealed that the country had lost an estimated $15bn worth of diamonds. He did not take any responsibility for the losses. Nobody was fired. Nobody was investigated or prosecuted. A year later, nobody talks about it anymore. It is preposterous to blame the colonial experience for such obvious failures.
Meanwhile, back in the sixties when African countries were getting their independence, many of them like Ghana, Nigeria and Zambia were equal to or even better than Singapore. Today, Singapore is out of sight in terms of development. It is so well-developed that Zimbabwe’s President Mugabe has virtually made it his second home. He is a frequent visitor to the city-state, where he gets regular medical treatment, far away from the dilapidated hospitals in his own country. The irony of all this does not register on him. 37 years after independence, the Zimbabwean situation is so bad that some citizens have begun to compare the colonial state favourably, itself a serious indictment on the post-independence leadership. That citizens of independent Africa have to make those comparisons with colonial Africa is indicative of how African leadership has let ordinary people down. Yes, global rules are skewed against the weakest of the world, but African countries compound their challenges through sheer incompetence and greed of its leadership. If other countries have made it after colonialism, there is no good reason why African countries cannot do it too.
The men who gathered in Berlin in 1884 spent three months negotiating the partition of Africa. The men who gathered in Addis Ababa in 1963 spent three days crafting an organisation that was supposed to free Africa from colonialism and to advance its unity and economic independence. What the men in Berlin created may have ended only in formal terms but the agenda of exploitation of continent has never stopped. From the oilfields of Ogoniland in Nigeria to the Coltan mines in the Democratic Republic of Congo and the Chiadzwa diamond fields in Eastern Zimbabwe, Africa’s resources remain a curse for the ordinary people. The corporations continue to do what they have always done: extract as much as possible at very low cost using all means available, fair or foul, for profit maximisation.
The men who gathered in Addis Ababa in 1963 sought to end colonialism and although this may have come to an end in formal terms, they failed to stop the exploitation of the continent. Instead, they joined the merry bandwagon and became associates in the exploitation project. Unsurprisingly, Africa’s industrial class remains thin and the richest class is generally the politicians or their associates. Much of their wealth is stashed away in tax havens. The ordinary people, those who have always been at the bottom of the food chain, remain stuck in that wretched place. This is the sad state of affairs as Africa commemorates Africa Day. There was a scramble for Africa among Europeans in 1884. The African elites joined the scramble from the 1950s. China has most recently joined the scramble, too. It’s a never-ending scramble for Africa.
What’s to be done?
This article sought to investigate the causal factors, drawing on Africa’s rich historical context. Crafting a vision for the future requires us to have a view of the big picture and history helps us to understand it. By 1984, one hundred years after Berlin, most of Africa had gone through formal decolonisation. Only Namibia and South Africa remained. Nobody can guess where Africa will be in 2084, but understanding what has happened since 1884 and where we are now can give us a reasonable estimate. The picture does not look promising and having got the continent back, future generations will never forgive us. What’s to be done to avert a potential disaster? This article sought to analyse where we are. A future article will focus on propositions for the future of the continent and its peoples.
I have used a number of works in preparing this essay on Africa. Here are some of the more interesting ones which interested readers may wish to read further:
Jason Hickel, Aid in reverse: how poor countries develop rich countries https://www.theguardian.com/global-development-professionals-network/2017/jan/14/aid-in-reverse-how-poor-countries-develop-rich-countries
Matthew Craven, Between law and history: the Berlin Conference of 1884-1885 and the logic of free trade London Rev Int Law (2015) 3 (1): 31-59 https://academic.oup.com/lril/article/3/1/31/2413101/Between-law-and-history-the-Berlin-Conference-of
Steven Levitsky and Lucan A. Way Elections Without Democracy - The Rise of Competitive Authoritarianism https://scholar.harvard.edu/levitsky/files/SL_elections.pdf
Sweet nothings - The human cost of a British sugar giant avoiding taxes in southern Africa https://www.actionaid.org.uk/sites/default/files/publications/sweet_nothings.pdf
A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge UP, 2004)
T. Pakenham, The Scramble for Africa: 1876-1912(Abacus, 1991)