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Coexistence of legitimacies, a transversal initiative: from institutional inclusiveness to judicial pluralism

By Falilou Mbacké Cissé, Assane Mbaye (The Alliance for Rebuilding Governance in Africa, June 2007)

Local governance is meaningful if and only if local institutions and rules are in step with the socio-cultural perceptions and realities of the territory in which they are applied. Consequently, the initiative on institutional inclusiveness and judicial pluralism will carry out a ‘research - action’ process on the status, place and role of the various types of legitimacy on the local level (in particular traditional and religious legitimacies) as well as on how the various rules of local governance (judicial, political, social, etc.) are produced.

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The legitimate governance advocated by the Alliance involves Africans collectively designing and setting up a type of governance with which all the different actors can identify, and which corresponds to their aspirations. Thus the legitimacy of governance is closely linked to African populations’ and societies’ recognition of modes of regulation and public institutions.

The major challenge is consequently to reconcile the State and society by tailoring institutions and rules of governance to fit the realities of African societies and culture. With this in mind, the Alliance’s doctrine defines the local level as the strategic level for rebuilding governance in Africa.

This requirement can only be met if the institutional engineering and local rules of governance are both inclusive and a reflection of the African socio-cultural personality. Whether we are talking about societies and the legitimacies they generate, organisations and the representatives they choose, political parties and the leaders they select, or the State and institutions it creates for itself, each individual who wishes to do so should be guaranteed the possibility and the right to express his or her ideas about and have an impact on public affairs. In short, he or she should be able to participate in the definition and implementation of the collective project.

Yet diagnostic analysis of governance in Africa has shown how difficult it has been for the decentralisation reforms and local development initiatives instigated by many African countries to establish legitimate local governance. For the most part, the schemas and means used to implement decentralisation processes have been copied from foreign models. Just like the States they are supposed to reinforce, local institutions are hollow structures.

In current local governance, these institutions do not ‘house the souls’ of their societies. Local power has been instituted and rules enacted without making any effort to take local realities into account. This situation leads to the coexistence of multiple legitimacies and varying types of relationships amongst them.

The local level is currently a complex space in which political, intellectual, traditional, religious, economic and social leaders entertain equally complex relationships that are cocktails of avoidance, cooperation, circumnavigation, conflict and phagocytosis.

The Alliance, for its part, argues in favour of a dynamic approach that includes all local actors and the enactment of rules of governance specific to Africans.

To achieve this end, it is vital to break down the ‘ghettos’ and walls of governance that make a distinction between categories of actors and types of legitimacies. We need to become aware of the fact that governance is not just a matter for public institutions—local, national and international—and dominant social or political groups. At the same time, there cannot be a category of passive actors–simple recipients and consumers of public policies. Nor can there be types of legitimacy that are confined to the ‘informal sector’ of governance even though they have a strong hold on society. Consequently, what is needed is an in-depth review of the engineering of local institutions and of the ways in which the rules of local governance are produced.

OBJECTIVE OF THE INITIATIVE

Local governance is meaningful if and only if local institutions and rules are in step with the socio-cultural perceptions and realities of the territory in which they are applied. Consequently, the initiative on institutional inclusiveness and judicial pluralism will carry out a ‘research - action’ process on the status, place and role of the various types of legitimacy on the local level (in particular traditional and religious legitimacies) as well as on how the various rules of local governance (judicial, political, social, etc.) are produced.

The initiative will, in particular, focus on:

  • The current state and a comparative analysis of institutional inclusiveness and judicial pluralism in the various countries of the Alliance’s western magnet centre. (To what extent do decentralisation and local development policies integrate legitimacies other than those based on citizens’ voting rights? What role do such legitimacies play in institutions and in local public life? Have they been given a constitutional, legal or regulatory status? What are the relationships between these legitimacies and elected authorities? To what extent do rules applying to populations reflect the diversity of the communities they constitute? Have the communities been granted the power to create their own norms? In what fields may they exercise these normative powers, in principle or in fact? What is the relationship between the rules made by communities and so-called ‘modern’ law?)

  • A regional examination and in each country a study on institutional inclusiveness and judicial pluralism. (What strategies and what actions can be used to make States and regional organisations aware that current modes of governance are in an institutional and judicial impasse?)

  • A partnership with willing States, to implement the principles of institutional inclusiveness and judicial pluralism. (What strategy and what action plan for States who want the Alliance’s support in undertaking reforms?)

IMPLEMENTING THE INITIATIVE

The ‘from institutional inclusiveness to judicial pluralism’ initiative is at the intersection between two thematic groups, the ‘governance, decentralisation and local development’ group led by Falilou Mbacké Cissé and the ‘judicial pluralism’ group led by Assane Mbaye.

It is, as a result, a transversal group that includes developments from the Bamako Colloquium and the Alliance’s inclusiveness doctrine.

The concentration country for the initiative will be Ghana. A national mediator will steer the initiative. In other countries, national correspondents will work to carry the initiative forward.

In keeping with the initiative’s objectives, and with the support of thematic focus groups, the mediator and correspondents are responsible, in general, for:

  • identifying, informing and mobilising the various categories of actors touched by institutional inclusiveness and judicial pluralism;

  • organising frameworks and mechanisms that can be used to mobilise forces, exchange ideas and produce information on institutional inclusiveness and judicial pluralism;

  • contributing as needed to the organisation and success of extra-national events associated with the initiative.

Specifically, national correspondents are responsible for:

  • describing the current state of institutional inclusiveness and judicial pluralism;

  • organising and capitalising on statements made by various actors involved in the initiative;

  • identifying or creating the conditions, positive points or potential for implementing the initiative in their respective countries;

  • proposing advocacy to get national authorities interested in the initiative;

  • if feasible, proposing a national action plan to implement the principles of institutional inclusiveness and judicial pluralism.