Africana: A Journal of Ideas on Africa and the African Diaspora Volume 2, Number 2 December 2008 Editorial Coordinator Mr Yilma Tafere Tasew Editor-in-Chief Dr Christopher LaMonica Copy Editor Ms Elise Goodge Board Members Mx Thomas Banda Dr Margaret Clark Dr Ramon Das Dr Mourtada Deme Dr Marion Maddox Dr Victoria Mason IT Consultant Mr John Anderson AFRICANA Victoria University of Wellington P.O. Box 600 Wellington 6140 New Zealand. Phone: +64 (4) 463-5760 Fax: +64 (4) 463-5414 www.africanajournal.org © Africana: A Journal of Ideas on Africa and the African Diaspora. All rights reserved. No part of this publication may be reproduced in any form without permission in writing from the publisher. © Africana logo by Emily Bailey. Cover photo: Christopher LaMonica Cover design: John Anderson Earlier issues of Africana are posted on our web-page at http://www.africanajournal.org All issues of Africana have been printed at: The Printery Massey University Private Bag 11 222 Palmerston North New ZealandCONTENTS: Introductory Note Christopher LaMonica Yilma Tafere Tasew 1 31 58 94 138 Democracy and Constitutionalism in Nigeria Under the Fourth Republic, 1999-2007 J. Shola Omotola Applying the Gravity Model to Trade Flows ina Country Under Sanctions: Case of Zimbabwe (1998- 2006) Martin Charumbira Teaching a Grade Seven Life Orientation Learning Area in a Disadvantaged Diverse Primary School Mabatho Sedibe Environmental Protection Laws and Sustainable Development in the Niger Delta Dr. Ibaba S, [baba Subverted Institutions and Democratisation: Zimbabwe and the struggle for democracy Kaspar Beech Book Review Purple Hibiscus, by Chimamanda Ngozi Adichie Fourth Estate (Harper Collins) $26 Reviewed by L.E. ScottINTRODUCTORY NOTE Imagine, if you will, starting a new journal with the title Africana: A Journal of Ideas on Africa and the African Diaspora. What kind of article submissions do you think a journal with that title would receive? What kind of difficulties might you have on the organizational end for such a journal? The answer, we have already found, is that there continues to be a very broad range of ideas as to what is most important to studies related to Africa and the African Diaspora. In fact, when our Board first met in November 2005 we discussed this very matter and we concluded that Africana, like Dubois’ original quest, had to be interdisciplinary. Indeed our first few issues have already seen a reflection of this methodological approach: articles have thus far included topics related to history, health care, sustainable development, and education, among other things. Often submissions deal with conflict-prone areas on the African continent which, in our view, is a clear reflection of the deep and sincere concerns of many who contemplate the welfare - past, present and future - of African peoples. As can be seen in the biographies of all involved, the geographic location and institutional affiliation of those concerned, spans the globe. Our intention is to continue promoting this dialogue, for reasons described in our inaugural issue, from our current headquarters in Wellington, New Zealand. We remind our readers that all submissions are ultimately posted on our web-page: http:/ /www.africanajournal.org/ Vol, 2, No, 2 2008 As we prepare this issue of Africana for December 2008, many are clearly intrigued by the recent presidential elections in the United States. In particular, the prospect of ending the dubious reign of the Bush Administration with that country’s first African-American president has captured the imagination of countless millions throughout the world. In the last months of the campaign The Economist magazine cleverly published a world map of “blue” and “red” countries, modelled after the now classic blue-red divide of states, within the US, that has emerged in recent decades: blue tespresenting pro-Democratic (Obama) states and red pro- Republican (Bush) states. What that map demonstrated was a clear majority of states throughout the world who were overwhelmingly in favour of change of party affiliation in US leadership; as it turned out a majority of US citizens held the same point of view, reflected at the ballot box in November 2009 (albeit by a decidedly smaller margin of victory for Barack Obama than many citizens throughout the world might have liked). Although many media pundits were quick to remark that the new president’s inaugural speech was not among the best in US history, we think it is fair to say that popular reaction in many parts of the world was quite positive. Consistent with his campaign messages of hope for change, Obama remarked: On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord. This kind of language struck a chord with many who were particularly tired of the previous administration’s conflictual Vol. 2, No. 2 2008 vitstance toward an “axis of evil” that many - unfortunately but undoubtedly - interpreted as a quasi-biblical reference and attack on many peoples’ decidedly less secular mode of conducting life and politics. Bush may well have been following the realpolitik “hard stance” approach of an earlier Republican president, Ronald Reagan, whose supporters applauded his 1983 reference to the “evil empire” of the Soviet Union! But this time the use of the term “evil” was directed at two global centres of the Muslim faith: Iraq and Iran. Whereas adherents of Communism seemingly joined a Jarger community of political ideas and debates, and relinquished their political hold of the Soviet bloc, a good number of Muslims took great. offence to the Bush administration’s interpretation of affairs. Some, alas for us all, have resorted to terrorism: the killing of innocents throughout the world. It was amidst a growing critique of Bush and his administration, both domestically and abroad, that the 9-11 attacks took place. And this event, in 2001, not only shocked the world, it heightened the fears of many Americans who, in turn, responded to Bush’s call for re-election in 2004, if only by a slim margin. US Democrats cried foul during the 2004 presidential campaign, when Republicans repeatedly used the tactic of “fear mongering.” When a reporter asked the Republican Dennis Hastert whether Al Qaeda would prefer that the Democratic candidate, John Kerry, won over the Republican incumbent George Bush, Hastert responded: “Yes ' Tt is recalled that President Reagan made his first public reference to “evil” during a March 8, 1983 speech to the National Association of Evangelicals in Orlando, Florida, in the US. Vol. 2, No. 2 2008 that is my opinion.”? Claiming “victory” - or more precisely “Mission Accomplished” - over the conflict in Iraq, Bush played into what many of his supporters wanted hear: “victory” was the only acceptable option. This zero-sum logic - either we win or they lose - was used repeatedly during Bush’s second term. When asked by reporters what, exactly, “victory” in Iraq might entail they were deemed part of the trouble-making “liberal media” - irresponsible questions that were irrelevant to the “real” issue at hand: victory. Certainly, what Bush and his supporters did not want to hear was any direct reference to the growing tide of anti- Americanism: to discuss this issue, or to contemplate a withdrawal of troops from Iraq - to accept “defeat” ~ during Bush’s second term, was to be unpatriotic. But these were exactly the issues that many Americans did want to discuss and contemplate, and the politically astute Barack Obama understood this. To his credit, Obama openly contemplated the “anmentionable” in the traditional discourse of American politics, which included the simple fact that the strongest expressions of anti-Americanism were based on a half century of US policies toward the Middle East. And to its credit, the Bush Administration similarly, if more subtly, began to ? See: “Hastert's al Qaeda comment draws fire: Idea that terrorists want Kerry to win called ‘silly,’ ‘disgraceful” at: hitp://www.cnn.com/2004/ALLPOLITICS/09/19/hastert.remark/index, html Vol. 2, No, 2 2008 viii+question the history of unwavering US support towards Israel, in particular. But, like the many presidents before him, Bush nevertheless expressed a continued need for US involvement in the region. Unlike previous presidential doctrines (e.g. the Carter Doctrine) that deemed the region of US “national interest” because of oil, the “Bush Doctrine” claimed that the attack of Iraq was a defensive measure: the US had the right to act unilaterally, ie. violate international law by attacking a sovereign state, if activities within that state threatened the security of the United States? The earlier logistics of the war, as reported by the popular media, infamously centred on the quest for “weapons of mass destruction” within the state of Iraq. Of course, in retrospect, there can be no doubt that this use of the Doctrine was but a mere pretext for the desire to topple the regime of Saddam Hussein. And, despite defensive comments to the contrary, securing oil for the US market must certainly have played a role.4 Importantly for Africa, in the final years of the Bush Administration, a sudden interest in African affairs was based on the same Doctrine, culminating in the creation of the US African Command (AFRICOM), part of the global US military command structure, and operational in October 2008. For * The formal text of which is found in the a document entitled “The National Security of the United States,” prepared by the National Security Council (September 2002), * Such claims have normally been attributed to the political left, within the US. See: Michael T. Klare, Blood and Oil: The Dangers and Consequences of America’s Growing Dependency on Imported Petroleum, (Holt, 2005). Vol. 2, No. 2 2008 ix now the exact mission of AFRICOM remains a matter of great debate. What is certain is that the desperate attempts of the Bush Administration to establish an African headquarters for AFRICOM were not successful: at least for now, AFRICOM remains based in Stuttgart, Germany. The leaders of Morocco, then Liberia, outrightly rejected the Bush Administration’s requests to have AFRICOM based in their respective states. This news was announced amidst the fanfare of a sudden African tour of the former US president that was undoubtedly accompanied by a background of lobbying attempts with those and other African politicians. The fact that the richest nation in the world could not convince even one of these materially poor African states to provide assistance to AFRICOM is yet another testament to the extent of anti-Americanism that the former administration seems to have fostered. Obama, and the many American citizens who have supported him, have all been concerned about this ongoing problem. This too is reflected in Obama’s inaugural address: To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West — know that your people will judge you on what you can build, not what you destroy. To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist. Vol. 2, No. 2 2008 xtObama followed that statement - to which again, many in the media pundits interpreted in one fashion or another - by having his first televised interview with Al-Arabiya, during which Obama argued that when it came to Middle East matters “all too often the United States starts by dictating.”5 In doing so, Obama demonstrated his own understanding of the aforementioned, that is, he understood that the former administration’s policies and actions - ironically made in the name of US national security - were actually “adding fuel to the fire” throughout the Muslim world (and perhaps elsewhere). Although the consequences of an Obama administration, for the Muslim world - that obviously includes much of Africa - remain unclear, the euphoria that followed Obama’s victory, expressed throughout Africa and notably in Kenya, was interesting to see: Will Obama’s words translate to less damaging US action on African soil? How might Obama's presidency impact the role of AFRICOM? And what of the previous US policies on free-trade and other economic liberalization policies toward Africa, vigorously pursued by the Bush Administration, such as the African Growth and Opportunity Act (AGOA)? (See: hitp://agoa.gov/) Only time will tell and we will all be watching. It is in this historic context then that we present to you Volume 2, Number 2 of Africana. The contributions in this 5 See: http://www. ajc.com/news/content/news/stories/2009/01/27/obama_arabic i nterview.html Vol. 2, No. 2 2008 issue demonstrate an ongoing concern for certain regions of Africa and, notably, Zimbabwe. We are also including articles of remarkably different academic styles, in part to demonstrate the range of scholarly efforts to clarify certain challenges in Africa, with the common aim of improving African state policy. The first article is written by J. Shola Omotola of the Department of Political Science and Public Administration at Redeemer’s University in Nigeria. Omotola contemplates whether the continued disregard for the Nigerian Constitution - what he terms “unconstitutionalism” - can nevertheless coexist with democratization. He argues that the tradition with Nigeria is “rule by law” and not “rule of law” and considers what needs to be done to achieve the latter. The second piece is written by Martin Charumbira, lecturer at the Department of Economics, Midlands State University in Zimbabwe. Charumbira cleverly uses econometrics - an academic and policy “language” that a growing number are tempted by - to consider how the Gravity Model might help elucidate trade flows in a country under sanctions: Zimbabwe. The third article is written by Mabatho Sedibe, lecturer at the Department of Educational Psychology at the University of Johannesburg, who addresses some of the difficulties of teaching in unsafe environments. Sedibe is particularly concerned with the issue of teaching “life orientation” in disadvantaged and diverse primary school contexts at grade 7. The fourth article is written by Dr Ibaba S. Ibaba and is entitled “Environmental Protection Laws and Sustainable Development in the Niger Delta.” Ibaba carefully considers the wording of various laws related to the matter and concludes that the laws, as they stand, have been a Vol. 2, No. 2 2008 xiitfailure, environmental degradation the result; his suggestion is that good governance could heip alleviate matters. The last article is written by Kaspar Beech, a postgraduate student at Victoria University of Wellington, who recently worked for an MP in Zimbabwe. We welcome your comments and ask that you please spread the word regarding Africana and, more importantly, continue to engage in dialogue on all matters related to Africa and the African diaspora. Christopher LaMonica Yilma Tafere Tasew January 2009 Vol. 2, No, 2 2008 xii Africana Democracy and Constitutionalism in Nigeria Under the Fourth Republic, 1999-2007 J. Shola Omotola, Department of Political Science and Public Administration, Redeemer’s University Mowe, Ogun State, Nigeria ABSTRACT Can a high level of unconstitutionalism coexist with democracy? Most political theorists are likely to answer this poser with an emphatic "NO". Yet, one of the ironies of democracy under the third wave particularly in Africa is the pervasiveness of constitutions without constitutionalism. This paper offers a case study in Nigeria's democratisation process to illustrate this irony. It is argued that democracy can serve as the guarantor of constitutionalism depending on the level of political institutionalisation, the existence of democratic political culture, democratic citizenship with democratic mindset and democratic constitution. Unfortunately, these are indices on whose rating Nigeria certainly scores excruciatingly low due largely to the enduring effects of colonialism and prolonged military rule. Hence, the high level of unconstitutionalism-rule by law as opposed to the rule of law - under the fledging democracy. The strongest recommendation of the paper is the need for the institutionalisation of a sustainable regime of social mobilisation and value reorientation at all levels of governance and social interaction. Vol. 2, No. 2 2008Africana INTRODUCTION It is well established in democratic political theory that democracy would engender and promote constitutionalism, where the latter is widely considered to be a cornerstone of democratic theory and practice.1 Jt is basically upon this assumption that the notion of democracy as a constitutional government, based on the rule of Jaw - a constitutional doctrine that emphasizes the supremacy of the law as administered by the law court - as against rule by law predicated upon authoritarian tendencies, rests. Kuper and Kuper2 share this thought when they contend that constitutionalism ensures that the Constitution functions as “an effective and significant limit on government,” becomes “antecedent” to government and those who are govern are constrained by it terms. However, this assumption about the relationship between democracy and constitutionalism breaks down when we examine the Nigerian experience particularly under the Fourth Republic. This is because the ongoing democratization process in the country, rather than advance the cause of constitutionalism, would appear to have undermined it. This is epitomized by the increasing level of unconstitutional acts at the various levels of governance, and/or the manifestations of acts that (could) undermine Constitutionalism and by extension, democracy, as would be shown shortly. How can high level of unconstitutionalism coexist with democracy? This is one of the several ironies of democratization in Nigeria that tends to threaten democratic deepening and consolidation in the county. In this paper, I offer a case study in Nigeria’s political development to illustrate and explicate this irony, with specific emphasis on the Fourth Republic which began in 1999 when the country re-democratized. It is argued here that democracy Vol. 2, No. 2 2008 at Africana can only serve as the harbinger and guarantor of constitutionalism depending on the level of political institutionalization, the existence of democratic political culture and citizenship, good leadership with democratic mindset, and the existence of a democratic Constitution. The absence or weak institutionalization of these forces in Nigeria, which can be partly explained by the protracted rule of the military and attendant culture of militarism and corruption, has served to hamper a full-blown regime of rule of law. I report evidence indicating this claim under the Fourth Republic. The study has important ramifications for the future of democracy and constitutionalism in Nigeria and elsewhere as illustrated in the concluding section of the paper. ON DEMOCRACY AND CONSTITUTIONALISM The literature on comparative politics in general and democratization in particular often paints a picture of a symbiotic relationship between democracy and constitutionalism. Andre Mbata Mangu, a Professor at the Department of Constitutional, International and Indigenous Law at the University of South Africa, was point blank on the correction between the two when he writes that “modern constitutionalism is democratic constitutionalism and modern democracy is a Constitutional one”3. Similarly, Njunga M. Mulikita, Vice Chairperson of the Board of the Southern African Centre for the Construction and Resolution of Disputes (SACCORD) also contends that “a democratic Constitution is absolutely imperative in a democracy” for its important roles. As a concept, democracy is a system of government characterized by the participation of the people through their freely elected representatives, by the recognition and promotion of the basic tights of citizens, including the rights of vulnerable groups such as the minorities. It basically has to do with the ability of the people to Vol. 2, No, 2 2008 34Africana control decision making,5 which explains why Eghosa Osaghae, a Professor of political science, argues that the central thing about democracy is to ensure that power actually belong to the people®. The defining characteristics of democracy include pluralism and multipartyism, including free and competitive politics; popular participation in the political process; rule of law and respect for human rights; and constitutionalism or respect for the “rule of the game”.7 The process of establishing, strengthening or extending these principles, mechanisms and institutions, which define a democratic regime, is generally referred to as democratization.8 But, as Robert Dahl has rightly pointed out, democracy in theory is different from its practices, positing that “having rights and opportunities is not strictly equivalent to using them”.9 It is therefore important that these rights do not just exist as merely abstract moral obligations, but must be “enforceable and enforced by law and practice.”10 These constitute Dahl’s two dimensions of democracy, first, as an “ideal, goal, aim or standard”; and second, as a “practice”. This takes us to the concept of Constitutionalism upon which democracy, both as a standard and practice, should rest ideally. Constitutionalism is a method of organizing governments that depend on, and adhere to a set of fundamental laws. Such basic laws are often articulated in the Constitution of the land, written or otherwise, as an expression of the fundamental philosophy of the political system; a collection of norms and standards by which a country is governed. The Constitution may therefore provide a good foundation of constitutionalism, which is adherence to the letter and spirit of the Constitution, but certainly not its guarantor. Much depends on the constitution making process with respect to its legitimacy, inclusiveness, and empowerment of civil society as well as the prevailing political culture.!1 This suggests the possibility of the existence of a Constitution without constitutionalism, as has been Vol. 2, No. 2 2008. 4s Africana the case is most African countries, where the Constitutions have deviated from well-known principles of democratic Constitution making as enunciated above, coupled with the prolonged rule under military absolution and autocratic dictatorship.12 Nevertheless, wherever constitutionalism exists, the Constitution becomes a political force to limit both the government and the governed. This explains why a constitutional government is said to be a “limited government,”13, Theoretically speaking, therefore, democracy and constitutionalism are symbiotic in relationship. While the former has its defining elements as carlier enumerated, such elements are defined by the Constitution of the land. But Constitutions are meaningless unless they are adequately enforced according to stipulated regulations. The process and act of doing this represent the whole essence of constitutionalism. This is in turn largely made possible by democracy, whose one of its core pillars is the rule of law. In reality, however, Africa in general and Nigeria in particular presents a paradox. Across the continent, except for some few exceptional cases as the recent Kenya referendum, during which the Constitution proposed by the government of President Mwai Kibaki was rejected and the aborted “third term” agenda in Nigeria, which sought to elongate President Obasanjo’s tenure beyond the statutory two terms of four years each, constitution making/amendment has become a ritual in the democratization process. As Njunga Mulikita has rightly noted: Many African countries have experienced constitutional instability since independence because Constitutions have lacked moral authority. All too often, when a constitution review commission is set up, governments have tended to appoint commissioners who are sympathetic to the government of the day. If the general public takes the view that the commissioners are sympathetic to the ruling party, they will shun the constitution-making exercise as a government stage-managed charade... when a constitutional review body submits Vol. 2, No, 2 2008 5hAfricana its findings and recommendations, sitting governments have chosen to accept only those recommendations which they find to be politically expedient. In some cases, governments have been known fo ignore about 70% of original submission in the white paper that normally forms the blueprint around which the evolving Constitution is to be finalized.14, Under this kind of situation, where the citizens have been reduced to mere “consumers”, with limited or on say in the decision-making process, democracy can hardly facilitate constitutional government based on the rule of law. For democracy and constitutionalism to be mutually reinforcing, the constitution making/review process should be democratic, allowing various interest groups adequate space to participate in the process in an open and transparent fashion. This gives room for the ownership of the project by the people, a feat that legitimizes the exercise. It is only when the constitution is rooted in society that it commands people’s respect and loyalty, making the implementation less problematic and vice versa. NIGERIA’S CONSTITUTIONAL HISTORY Any attempt to effectively grapple with the deepening crisis of constitutionalism in Nigeria can not but reflect on the history of constitutional development in the country. Indeed, the history of constitutionalism in Nigeria is nothing more than the history of constitution making. The constitution making process and the extent to which it is democratic and legitimate through the use of available openings, institutions that are embedded in society are the cardinal ingredients of constitutionalism. Going by its experience and fact of history, Nigeria is in gross deficit with regard to these virtues that engender constitutionalism, which largely explains why the country has, since the colonial days, been plagued by a deepening crisis of constitutionalism. This crisis is partly reflected by the high rate of constitutional turnover in the country, an evidence of constitutional Vol. 2, No. 2 2008 6L Africana instability as well as the alarming rate at which citizens; including the governor, violate the law of the land. We will return to this. It would be recalled that Nigeria was a colonial creation. Its constitutional development was, accordingly, shaped and driven by colonial interests to a very large extent.15 From the outset, the colonial escapade was largely exclusionary and divisive, alienating the mass of the people from any form of involvement in the politics and policy processes of government. The agitation by the Nationalists may have forced some moderation, resulting in the movement from the Nigerian Council of 1914 to the Clifford Constitution of 1922, under which an expanded legislative council was established in 1923. However, the Council turned out to be merely a charade, conceding no power to the subjects. This exclusionary foundation sets the tonality of the “constitutional imperialism” that was to follow, first under the colonial government, and later in the post-independence era of the new states across Africa.16 As it happened, all subsequent Constitutions during colonialism in Nigeria - Richard Constitution (1946), Macpherson Constitution (1951), Lyttleton Constitution (1954) and Constitutional conferences, including the 1960 Constitution that ushered the country to independence followed similar trends. Some notable features of these Constitutions, which served to mitigate constitutionalism were that they were not only handed down from the above and imposed on the society, creating severe crises of ownership and legitimacy for them, but also vested the power of veto in the Governor, later Govemor General. The Macpherson Constitution that radiated flashes of consultations with various groups and interests across the country, could also not be regarded as the “people’s Constitution”, as the Governor General still retained his power of veto, not necessarily bound by the provisions of the constitution and/or laws made by the legislature, besides its inherent contradictions.17 The various Constitutional conferences that were held in the immediate pre- Vol. 2, No. 2 2008 peAfricana independence period, such as the London and Ibadan Conferences of 1957 and 1958 respectively, were also an entirely elitist affair, with little or no inputs from the people. It was under this condition that Nigeria, like most other ex-colonies in Africa, was ushered into independence. By all standards, it then follows that the Constitution, which colonialism bequeathed to the country at independence in 1960, was every thing but democratic, creating in its wake a vacuum of ownership and legitimacy. However, the attainment of independence had kindled new hopes among Nigerians for the effective domestication of inherited socio-political structures, including the Constitution through democratic processes. Unfortunately, this was not to be so because the new elite of power that took over from the colonial lords had already been incorporated into the colonial ways of doing thing.!8 As such, rather than initiate genuine processes of constitutional engineering that would engender a democratic political future, their primary concer would appear to be that of self- preservation. In the wake of attendant constitutional crises, it was not surprising to see, one country after the other, having their inherited democratic edifices scathed and collapsed.19 This development marked the entry point of the military into politics in Nigeria (Aftica), with devastating consequences for constitutional engineering and constitutionalism. Across Africa, the military is known for its reliance on constitutional engineering as a way of drawing legitimacy to their rule; and perhaps, also as a strategy to elongate their stay in office. This was particularly the case in Nigeria where the military drafted new Constitutions for the country on four different occasion - 1979, 89, 95 and 1999 - between 1979 and 1999.20 This depicts a high level of constitutional instability (5 years on the average). Yet, the dominant features of this constitutional engineering, like their colonial predecessors, were exclusion, alienation and imposition. While constitutional Vol. 2, No. 2 2008 gt Africana conferences/committees were put in place to oversee their affairs, in most cases, most members of such conference/committees were not people’s representative as they were nominated by the military Head of state.21 Worse still, the outcome of such conferences were never subjected to referendum through which the people can claim ownership of resultant documents - the Constitution. In extreme cases, some clauses perceived to be inimical to the interest of the military Heads of State were substituted with new ones before decreeing the draft into a Constitution.22 It was, perhaps, for the foregoing and related reasons that while Nigeria, though well known by its continuous search for an enduring Constitution, is equally known for its deepening crisis of constitutionalism, what Julius Ihonvbere referred to as “constitution without constitutionalism.23 It is within this context that the ongoing African debate on democracy was initiated in the early 90s. It was hoped that the new environment of democracy, precipitated by what is famously known as the “third wave” of democratization24 would engender a sustainable regime of constitutionalism where the rule of law, rather than rule by law, would prevail. Such expectation was, perhaps, predicated upon the assumption that, as a participatory system of governance, the search for new democratic Constitutions would be people-driven, people-owned and people-executed through an inclusive, participatory, open and transparent processes.25 To what extent have these expectations been met in Nigeria? (UN)CONSTITUTIONALISM UNDER THE FOURTH REPUBLIC Nigeria’s triumphant transition to democracy in May 1999 after all hopes had almost been lost with the annulment of the 12 June, 1993 Vol. 2, No. 2 2008 otAfricana Presidential election, one adjudged as the freest and fairest in the country’s annal of electoral history, followed by the self-succession bid of the Abacha regime (1993-1998), resuscitated hopes for another dawn of democracy precipitated on democratic ideals. Among other expectations, Nigerians hoped, given the expected opening and expansion of the political space for democratic discussion, deliberation, disagreement and consensus-building, that democracy would promote constitutionalism and the rule of law. Eight years after, it would appear that these expectations have been largely squandered. In the politics and policy processes of the country since 1999, violation of the Constitution has become very pronounced. To begin with, the attempt to review the 1999 Constitution upon which the democratization processes are anchored leaves little or no room for a new era of constitutionalism in the country. It would be recalled that the 1999 Constitution was an amended version of the still-born 1995 Constitution. It was this document the Abubakar Abdusalami regime hurriedly tinkered through a Constitutional Debate Coordinating Committee (CDCC) headed by Justice Niki Tobi, with barely two months for the exercise.26 Consequently, the CDCC could not make widespread consultation and organise public hearing properly. In all, what the CDCC ended up producing as a draft Constitution was far from being the people’s Constitution, as the new draft, like its 1995 progenitor, was not people-driven. Besides its conflicting provisions on a number of issues, a worrisome feature of the Constitution is the over-concentration of political power in one person - the President - resulting in the “Presidentialisation” of the state and its politics and policy processes. This laid the foundation of the constitutional crises that were to follow under the Fourth Republic. As public criticisms and clamour for a review of the Constitution through a Constitutional conference heighten, the President had to set up a Presidential Technical Committee (PTC) in Vol. 2, No. 2 2008 104 Africana August 2000 with a mandate to collect views and recommend ways of making the 1999 Constitution workable towards the promotion of national unity. In it’s report, the PTC admitted that there were serious inadequacies in the 1999 Constitution that needed to be redressed.27 This was, however, insufficient to douse public demand for a national conference, As the tempo heightens, the President succumbed in February, 2005 by setting up the National Political Reform Conference (NPRC) to debate those inadequacies, along with other national questions and suggest the way forward. But from the beginning, it was apparent that these initiatives were far off the mark of peoples expectations. For one thing, all members of the NPRC were selected by the President and State governors. For another, there were “no go areas” in the terms of reference of the NPRC, although the President vehemently denied this. As it tured out, however, the report of the NPRC, which the President presented to the National Assembly on 22 July, 2005 for deliberation with a view to incorporating the document into the Constitution, could not see the light of the day. This signals the illegitimacy of the NPRC ab initio. 28 Popular opposition to it was so strong that the Pro-Democracy National Coalition (PRONACO), led by veteran nationalist, Chief Anthony Enahoro, who is remembered for moving the famous motion for internal self government in 1956 and Professor Wole Soyinka, (both rejected their nomination into the NPRC by the President), had threatened to organize a parallel Sovereign National Conference (SNC), that would be owned and driven by the people. Although, this is yet to hold due largely to internal wrangling, showing the limits of civil society in Nigeria, the boycott by these respected democrats and their subsequent formation of PRONACO may be an indication of public dispiritedness in the NPRC. 29 Beyond the crisis of constitutional engincering, there have been several cases of unconstitutional acts especially at the official level. It is ironic to see that despite the promise of the new democracy and government to restore a sustainable regime of human Vol, 2, No. 2 2008 litAfricana rights, there have been several instances where the basic rights of citizens, including the freedom of the press, have been violated. The press can be said to be free when it can act independently, within its statutory and ethical standards, without interference from any quarters. This. is partially assured in section 36 of the 1999 Constitution which states that “every person shall be entitled to freedom of expression, including freedom to hold opinion and to receive and impart ideas and information without interference. 30 Although the section does not specifically mention the press, all the rights it concedes to citizens would be hard to accomplish, if not impossible without a free press. However, these have been honoured more in the breach. For example, Governor Lam Adesina banned The Comet correspondent in Oyo State from the Government House in 2002 for writing unfavourable reports about his administration. Again, the State House Correspondent of Zhe Monitor newspaper, Cyril Mba, was expelled from Aso Rock (Presidential Villa) by President Obasanjo over a write-up in the latter’s column entitled “OBJ forces Ministers to Pray” in September 2003. The President also shut down Insider Weekly magazine in September 2004 without first obtaining a court order because of what they called “negative, false and malicious” publications about the government. Tribune's reporter, Yemi Giwa, who holds Bachelor and Masters of Arts degrees, as well as LL.B in Law, all from the University of Ibadan, and who had been covering Aso Rock for the past four years, was suddenly expelled from the Villa for “not qualifying” to cover the place. 31 The list seems to be endless. It is such that Human Rights Watch, in a 40-page report entitled “Renewed Crackdown on Freedom of Expression” documents in details basic violations of press freedom in Nigeria. The report decries President Obasanjo’s use of violence and intimidation to silence its critics including the media. It notes further that opposition leaders, political protesters and journalists have all fallen foul of the security forces. Its Executive Director, African Division, Peter Taxirambuddle stated further that Vol. 2, No.2 2008 i2t Africana “even though military rule has ended, Nigerians still cannot express themselves freely without fear of grave consequences.”32 These travails of the press under “democracy” represent rule by law, not of law. The 1999 Constitution vests the powers over local government in the State Houses of Assembly (SHA). Section 7 (1) of the Constitution is categorical about this when it states that; The system of local government by democratically elected local government is under this Constitution guaranteed, and accordingly, the government of every state shall, subject to section 8 of this Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such councils,33 Despite the unambiguity of this provision, the federal government has severally violated it since 1999, The most notable of such instances are the issues of the 2003 attempt by President Obasanjo to reform local government system nationwide and the attempt to create new local government areas (2002-2003) by some states. It was in a national broadcast on 18 June, 2003, barely three days to local government elections slated for 21 June that the President announced the intention to reform the local government system. The reason, according to him, was “to incorporate an efficient and participatory framework that should maximize the utilization of scarce resources available to governments.”34 Although, there is no gainsaying corruption is rampant at the local government level in the country. However, the truth of the matter is that the President does not have the constitutional power to initiate such reforms. In fact, by virtue of section 7(1) of the 1999 Constitution, it is not mandatory that all local governments in the country be uniform in composition and structure, as long as the SHA of each state legislates in support of whatever is on ground. Vol. 2, No. 2 2008 134Africana Yet, a more worrisome dimension was the timing and the manner in which the vacuums created by the postponement of local government election were filled. As noted earlier, the reform was announced three days to election at local government level, signaling its inevitable postponement. Moreover, the dully constituted councils were disbanded, having been in office for their statutory three years. To avoid vacuums, the President directed that Caretaker Committees be put in place, which was constituted by appointment/selection, as opposed to the constitutional requirement of election. This not only represent a gross violation of the Constitution, but has also been seen as a deliberate design by the presidency to reposition the ruling People’s Democratic Party (PDP) for the local government election, its tactics in the previous elections having been exposed.35 The attempt by some SHAs to exercise their rights by creating new local councils in their respective states also readily comes to mind, While many states attempted to exploit the provision of section 7(1) of the 1999 Constitution, the case of Lagos State stands out as the most controversial. This is because while all the states that created new councils between 2002 and 2003 reverted to the old order at the instance of President Obasanjo (eg. Kogi, Kwara), who insisted on not recognizing and funding them, Govemmor Ahmed Tinubu of Lagos state stood his ground. This resulted in inter- governmental crisis between the federal government and Lagos State due largely to the drastic and unconstitutional decision of the President to withhold statutory allocations to all local governments in Lagos State, including the old ones recognized by the 1999 Constitution for more than two years because elections were held into the new councils.36 If this represents grave constitutional violation, the crux of the matter came with the judgment of the Supreme Court of Nigeria that the allocation be released to Lagos State. Despite this judgment, Vol. 2, No.2 2008 144 Africana the President still insisted for a very long time that the only condition for that was for the new councils abrogated. It was not until these councils were converted to Development Areas that the President started releasing the accumulated grants instalmantally. These not only represent the violation of the autonomy of local government in Nigeria, but also a reflection of the extent to which this government holds the judiciary in contempt. If the apex court of the country could be so treated, what is the fate of lower courts and the common man? The unprecedented pace of impeachment across the country has also manifested several cases of constitutional abuses. 37 At all levels - federal and state - the impeachment of public officers or its threats have always deviated from the constitutional requirement. This was well demonstrated on 13 August 2002 when the House of Representatives attempted to impeach the President for alleged constitutional breaches. The trend has assumed the dimension of a scourge at the state level where impeachment has been perverted and used as a weapon for settling political scores. Although, there is no gainsaying the misdeeds of most of these office holders in manners scornful of the Constitution, the anachronistic manners in which impeachment motions are moved and prosecuted seem worse. This was the case in Bayelsa, Oyo, Ekiti and Plateau states where the Govemors - Diepreye Alemesiegha, Rasheed Ladoda, Ayo Fayose and Joshual Dariye, respectively, were impeached in unconstitutional ways. In Oyo State, for example, Ladoja was not given time to defined himself. Besides, there was a court injunction stopping the composition of the impeachment panel but was not respected, Above all, the session under which the recommendation of the panel was taken and the Governor impeached did not satisfy constitutional requirements especially with respect to two-third majority.38 This has been validated as a competent court of law has recently annulled the processes that led to the removal of the Governor. In Plateau State, Dariaye was removed under a session inappropriately convened and without quorum, let alone two-third majority. In fact, nothing corroborates this better than he facts that all the governors Vol. 2, No, 2 2008 15Africana impeached so far except the of Bayelsa state, Diepreye Alemesiegha, have had their impeachment nullified and restored by competent courts of law for their arbitrary nature. Reflecting on these constitutional abuses, Adeyemi Ikuforiji, Speaker of the Lagos State House of Assembly, queried in an interview with Saturday Punch that; How on earth can an honourable member, worth his salt, get up by Sam to go into the hallowed chambers of the assembly to pronounce a sitting governor impeached? If you hold sacred the institution, if you hold sacred the Constitution of the Federal Republic of Nigeria and the rules of the house, you know the time that the house should convene.39 The Fourth Republic has also witnessed the unconstitutional use/deployment of the military. Two instances expressly capture this phenomenon. One was the deployment of the military to Odi, a small village of about 15,000 people in the oil-rich Bayelsa State, for what has been equated with genocide, in retaliation of the killing by militants in the area of security men deployed to the region for security purposes. Saka Biam, another village in Benue State suffered the same fate for similar reasons. If one is not so bothered about the massive violation of rights of the people, including arson, rape, torture and death, which these acts brought, one must definitely by perturbed about the fact.that the deployment was carried out without the approval of the National Assembly as demanded by the Constitution. These acts were eventually parts of the seventeen-count charge (articles of impeachment) in the impeachment motion against the President in 2002.40 Yet, the President has on two different occasions violated the “emergency power” provisions of the 1999 Constitution. Whereas, the Constitution under its miscellaneous provision in Part II, Subsection I of Section 305 provides that “subject to the provision of Vol. 2, No. 2 2008 16+ Africana this Constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a proclamation of a state of emergency in the federation or any part there of.41 However, this can only be done on conditions. These include if the federation is at war; is in imminent danger of invasion; there is actual breakdown of public order or public safety; and if there is a clear and present danger of an actual breakdown of public order, etc.42 While it may be debatable as to the existence of any of these conditions in the cases of Plateau and Ekiti States where the President has used this power, legal experts are unanimous in their declaration that the President’s action was constitutional.43 In some quarters, it was even contended that the crisis that led to the declaration of state of emergency were politically motivated and fuelled by the President for some selfish interests, Real or imagined, the concern relates to the unconstitutional applications of Constitutional provisions. Above all, nothing seems to capture the insensitivity of the managers of the fledging democracy to constitutionalism than the “aborted” third term agenda. The third term agenda was a carefully crafted constitutional amendment programme aimed at elongating President Obasanjo’s tenure in office beyond the statutory two terms of four years cach. The failure of this agenda at the 2005 NPRC meant that the only avenue to enforce it was the National Assembly. In the course of the debate, the President, through the Chairman of the PDP, Colonel Ahmadu Ali (Rtd), deployed all resources at their disposal, including money, intimidation, harassment, etc. to pursue the agenda. However, the unity of purpose which the agenda generated among pro-democracy groups, human rights activists, opposition elements, and social movements across the country saw to the defeat of the bill during its second reading in both the Senate and House of Representatives. If the bill had scaled through, President Obasanjo would have continued in office in May 2007 for a third term. The fact that the agenda could even be initiated and Vol. 2, No. 2 2008 itAfricana championed through the instrumentalities of the state and the ruling party, is an indication that the President and most of his close associates have little or no regard for the rule of law.44 Democrats should learn to accept constitutional term limits to their tenure. As it is now, the fear is still out there regarding the possible reincarnation of the third term agenda in another form.45 The foregoing illustrates very graphically the high level of unconstitutionalism characteristic of Nigeria’s Fourth Republic. Why has it been so? UNDERSTANDING THE PROBLEM The deepening crisis of democratization and constitutionalism in Nigeria can be explained by a number of factors. First is the colonial origin and character of the Nigerian Constitution inherited at independence. Essentially, the Constitution under colonialism was an instrument of alienation and exclusion of the society from governance. This was to be complicated by the fact that the new elite that took over power at independence had already been indoctrinated into the colonial ways of doing things. As such, they sought to exploit the constitutional processes to advance their selfish interests, The attendant contradiction, such as the crises of ownership and legitimacy, largely contributed to military intervention in politics, but, as it has turned out, the advent of the military into politics, rather than being corrective as claimed, had been counter-productive. Apart from other vices, the prolonged rule of the military in Nigeria, as elsewhere in Africa, had had profound effects on democratic constitutional development. Not only did they suspend the Constitution and rule by decree, but also their attempts at constitutional engineering, which was usually a critical element of their civil-transition programmes, were known to have fallen short of acceptable standards earlier discussed.46 As Ben Nwabueze sums it up: Vol. 2, No. 2 2008 igh Africana The problem of Constitutionalism in Africa is three fold. One is the origin of the Constitution in Africa as an institution and an imposition. Two is the character that is stamped on the Constitution by colonialism as an instrument for autocratic control. And three, the frequent overthrow of the Constitution through military coups followed by prolonged military rule under military absolution.47 The combined effects of colonialism and military rule especially on constitutionalism have been preponderantly manifest. Beyond the marginalization/exclusion of popular voices from the constitution-making processes, they have equally brought about the weak institutionalization of political institutions which, ordinarily, should serve to energize the processes of constitutional engineering and constitutionalism. Most notable of these socio-political institutions include political parties, including opposition parties, the judiciary and legislature, civil society, and the mass media. Ideally, these institutions should serve as oversight bodies with moderating effects on government’s actions and inactions. However, this was not to be so because of the excruciatingly poor human rights condition under successive military regimes in Nigeria, including the close to zero level of toleration of political opposition. While the new environment of democracy would appear to have expanded the political space for renewal, the process of regeneration of these basic infrastructures of democracy would appear to have suffered reverses on several occasions. The most notable of these relates to what has been referred to as “violence against democracy” in Nigeria whereby institutions and related actors that have been saddled with the responsibilities of nursing the democracy project have become highly incapacitated to do so most especially by the state.48 For examples, Nigerian parties are not ideologically driven. Rather, they largely depend on forces of identity particularly ethnicity and religion for political organization and mobilization. Civil society organizations are polarized along ethnic divides, urban biased and like political parties lacked internal discipline, accountability and democracy. The Vol. 2, No.2 2008 19+Africana mass media have been griped by corruption, which disempowers it from upholding the truth in its activities, etc. These problems, which are largely rooted in the state, have not enabled these institutions the ability to play their roles in ways that strengthen democracy. A related dimension of the problem of constitutionalism in Nigeria, which is also largely a consequence of prolonged limitary rule, has to do with the absence of democratic political culture and democratic citizenship. Having experienced military absolution for three decades (1966-79; 1984-99) out of 39 years of its post-independence existence in 1999 when it retuned to democracy, Nigerians have had more contact with the military ways of doing things. One basic feature of military rule in Nigeria was the suspension of the Constitution. In its place were the use of Decrees and Edicts at the national and state levels respectively. This would seem to have aided the militarization of the state and society, that is a situation whereby Nigerians have come to believe and rely heavily on the use of force, the rule by law, at the costly expense of rule of law associated with democracy, with little or no room for democratic deliberations, discussions, agreement and disagreement. This vacuum was already so penetrating by 1999 when the country retumed to the paths of democracy. It is therefore not too surprising to see how Nigerians, both high and low, leaders and followers, have largely squandered the opportunities offered by the nascent democracy, notably the expansion of the democratic political space for conflict management and consensus-building. This may not be unconnected with the inherited culture of violence bequeathed to the state and society by prolonged years of military rule. This absence of democratic political culture may have created a vacuum/deficit of democratic citizenship, that is, democrats with democratic mindset, who are willing and able to do things according to democratic principles. The deepening crisis of democratic citizenship seems to have added to the already festering problem of leadership afflicting the country. For the better part of its post-military experience since 1999, Vol. 2, No. 2 2008 20+ Africana the national leadership and even at other levels of governance have assumed a god-father figure, who have answers to all national questions.49 The result, as we have seen, is the predominance of the tule by law, at the costly expense of the rule of law, with severe ramifications for constitutionalism. These include the “messianic” interpretation of “self” by most leaders, for example, the botched attempt to elongate the statutory tenure of office of public office holders particularly the President so as to enable them finish the “good works” he has initiated.50 The perception, which is largely a reflection of the quality of leadership, may have also served to complicate the issue of constitutionalism in Nigeria under the Fourth Republic. Above all, the crisis of constitutionalism in Nigeria is largely a reflection of the failure of the state. Ideally, the state has responsibility for the maintenance of law and order and the provision of social and infrastructural amenities for the people. It is only when the state discharges these roles effectively and adequately that it can remain in good standing with the people. Unfortunately, the Nigerian state has over the years become too “soft” economically, giving its economic fluctuations and misfortunes, which do not enable it to meet these challenges. In the process, the people can not but device alternative means of coping, including the legal and the illegal. It is these alternative sources of survival that first elicit support and loyalty from the people, before the state. This partly explains why most Nigerians find it to circumvent and/or violate the law of the land. In order for it to demonstrate that it is still in charge, the state, most often also devises strategies, including unconstitutional ones, to force the citizens into obedience. As this cycle continues, the level of unconstitutionalism tends to heighten. Vol. 2, No. 2 2008 aitAfricana CONCLUSION: THE FUTURE OF DEMOCRACY AND CONSTITUTIONALISM What does the future hold for democracy and constitutionalism in Nigeria? Going by the preceding analysis, one may have to be circumspective in his projection. On the one hand, it appears as if the future of constitutionalism is very bleak, given the rampant cases of abuse of the rule of law as enunciated above. Such abuses have had negative impacts on the political and democratic development of the country in many respects. First, rather than promote constitutionalism, the democratization process would appear to have taken a reversed order, engendering anti-constitutional acts. Second, the high level of unconstitutional acts has also seen to the violation of the fundamental human rights of citizens, including the right to dissent and press freedom as a core element of democracy. Above all, it has also questioned the very foundations and significance of political representation in liberal democratic theory. Arising from the foregoing is the crucial challenge of recapturing these concepts - democracy, human rights, political representation, and constitutionalism - in manners that put them in tune with the expectations/demands of state and society. But, given the fact that the roots of these violations are known as earlier indicated, it can be expected that adequate measures will be taken to address them appropriately. There are a number of indications that portray good prospects for this, First, the democratization process, despite its fluctuating fortunes, holds some prospects for the promotion of constitutionalism. This optimism is predicated upon the fact that the local and external forces that precipitated the democratization process in the first instance are still very much around, though at a seemingly lesser level of exertion. Locally, the expansion of the political space has ensured the eruption of Civil Society Organizations (CSOs) that are committed to the promotion of democracy, good governance and Vol. 2, No. 2 2008 224 Africana human rights, Externally, the international aid conglomerates continue to link their development assistance, Foreign Direct Investment (FDI) and debt relief to being democracy compliant. With these forces intact, there are reasonable prospects that the democratization process will not suffer from reversal waves, erosion and/or breakdown. If this holds, there will be ample opportunities for adjustments and readjustments which the process may demand on its paths to the evolution of democratic political culture and citizenship. Certainly, democratic development is a continuous adventure that requires adequate time to nurture. Second, the existence of institutionalized frameworks at the international and regional levels for the enthronement and evaluation of the extent to which a government is democratic and good, offers another possibility for a new regime of constitutionalism. In this respect, the New Partnership for Africa’s Development (NEPAD) and the African Peer Review Mechanism (APRM) are particularly very relevant. Though relatively young to evaluate, both the NEPAD and APRM are instrumentalities of the African Union through which it sought to promote good governance and sustainable democracy and development in Africa. The existence of these frameworks can be explored by countries genuinely desirous of consolidating democracy and development in Africa. What needed to be done is to ensure the effective workability of these frameworks for the deepening of the democratic roots in the country. This can be done by domesticating these documents at the national, state and grassroots levels of governance in the country. The implication is that it is Nigerians that must exploit the opportunities offered by these institutions for democratic deepening, not waiting for the AU to come and execute them. Giving the seeming indifference/biased attitude of the Au to the Zimbabwean crisis, it is not clear yet whether the AU has the political will to experiment these instrumentalities adequately. Vol. 2, No. 2 2008 234Africana Beyond these prospects, however, there is need to be more inward-looking by devising means of strengthening weakly institutionalized institutions of state and society. In this case, political parties, CSOs, the judiciary and legislature and the mass media at all levels would have to be reformed to attune them to the demands of a democratic society. Such a reform should address the fundamental question of internal democracy in these institutions, their funding and internal oversight devices. Once these are internally secured, the tendencies are that they may radiate similar traits in their relations with the state and/or society. Whatever the options, however, they must be pursed within a broader framework of social mobilization and value reorientation targeted at the citizens at all levels of governance - national, state, local, communities and families. It is then that the democratization process may help to develop democratic political culture and citizenship capable of engineering constitutionalism. REFERENCES 1, Zoethout, C.M. et al (eds.), Constitutionalism in Africa. A Quest for Autochthonous Principles, Gouda; Quint Deventer 1997; Friedrich, Carl J. (ed.), Constitutional Government and Democracy, Boston: Ginn and Company, 1950; Zurcha, AJ. (ed.), Constitution and Constitutional Trends Since World War I, New York: New York University Press, Revised 24 Edition, 1995; Whereas, K.C, Modern Government, London: Oxford University Press, etc. 2. Kuper, A. and Kuper, J. eds. The Social Science Encyclopedia, London:Routledge, 1985. 3, Mangu, Andre M. “Constitutional Democracy and Constitutionalism in Africa”, Conflict Trends, Issue 2, 2006. P. 4. Vol. 2, No. 2 2008 24h Africana 4, Mulikita, Njunga M. “A False Dawn? Africa’s Post-1990 Democratization Waves”, African Security Review 12(4), 2003, P. 109. 5, Zack-Williams, A. B. “No Democracy, No Development: Reflections on Democracy and Development in Africa”, Review of African Political Economy, Vol.28 (88), 2001. p. 213; Omotola, Shola J. “No Democracy, No Development or Vice Versa?”, in Saliu, Hassan A. et al eds. Democracy and Development in Nigeria, Vol. 1: Conceptual Issues and Democratic Practice, Lagos: Concept Publications, pp. 27-28. 6. Osaghae, Eghosa E. “Sustaining Democrativ Values in Africa: The Moral Imperative”, in Omoruyi, Omo et al eds. Democratisation in Africa: African Perspective, Vol. 1, Benin City: Hima and Hima, 1994, p.40. 7. Osaghae, Eghosa E, “Democratisation in Sub-Saharan Africa: Faultering Prospects, New Hopes”, Journal of Contemporary African Studies, 11(1), 1999, p. 7. 8. Abrahamsen, Rita, Discipline Democracy: Development Discourse and Good Governance in Africa, London: zed Books, 2000. 9. Dahl, Robert A. “A Democracy Paradox?”, Political Science Quarterly, Vol. 115(1), 2000, p. 38. 10. Dahl, Robert A. Ibid, pp. 37-38, LL, Omotola, Shola J., “Problematising the Constitution in Africa”, The Nigerian Social Scientist, 6(2), 2004. pp. 42-44. 12. Sec Thonvbere, Julius, Zowards a New Constitutionalism in Africa, London: Ceatre for Democracy and Development, 2000; Okoth — Ogendo, H.W.O. “Constitutions without Constitutionalism: Reflections on an African Paradox”, in Zoethout, C.M. et al (eds.), Constitutionalism in Africa. A Quest for Autochthonous Principles, Gouda; Quint Deventer 1996, pp.3-25. 13. Sartori, Giovani, “Constitutionalism: A Preliminary Discussion”, American Political Science Review, Vol. 56(2), 1992 Vol. 2, No. 2 2008 2stAfricana 14. Mulikita, Njunga M. “A Falsse Dawn? Aftica’s Post-1990..., Op-cit, p. Ill. 15. See, Osipitan Taiwo, An Autochthonous Constitution for Nigeria: Myth or Reality, Text of an Inaugural Lecture, University of Lagos, 24 Nov. 2004. 16. See, Mandani, Mamood, Citizen and Subject: Contemporary Africa and the Legacies of Late Colonialism, Princeton; Princeton University Press, 1996; Nwabueze, Ben. Constitutionalism in the Emergent States, London: Hurst and Company, 1973. 17. Nwabueze, Ben, A Constitutional History of Nigeria, London: Hurst and Company, 1982, pp. 20-25. 18. See, Mbaku, Makum J. “Constitutionalism and Governance in Africa”, West African Review, Issue 6, 2004. 19. Omotola, Shola J. “Explaining Succession and Legitimacy Crisis in Africa: Colonialism Revisited”, Research for Development, 20(2), December, 2004. 20. The 1989 and 1995 Constitutions, though drafted, were never operated due to the collapse of the transition programmes that informed them. See Neurus Nwosu, “The Military and Constitutional Engineering in Nigeria”, Horin Journal of Business and Social Sciences, 5(2), 1998. 21. Ugoh, Chucks S. “Constitution-making and Constitutionalism in Nigeria’s Fourth Republic (1999 -2004): Issues and Trends,” UNILAG Journal of Politics, (1), 2005, pp. 166-170. 22. Okon, A.O. “Nigeria and a People’s Constitution: The Imperative of Democracy and Change,” The Constitution: A Journal of Constitutional Development, 4(1), 2004, pp. 20-25. 23, Ihonvbere, Julius Ihonvbere, J. O. “Constitutions without Constitutionalism? Towards a New Doctrine of Democratization in Africa,” in Mbaku, J. M. and Ihonvbere, J. O. (eds.), The Transition to Democratic Governance in Africa; The Continuing Struggle, Westport, CT: Praeger, Vol. 2, No. 2 2008 26+ Africana 2003. See also, Okoth-Ogendo, H.W.O,, “Constitutions without Constitutionalism: Reflections on an African Paradox,” in Zoethout, CM. et al (eds.), Constitutionalism in African: A Quest for Autochthonous Principles, Gouda: Quint Deventer, 1996, pp. 3-25. 24, Huntington, Samuel P. The Third Wave: Democratization in the Late 20" Centaury, Noma; Oklahoma University Press, 1991. 25, See Shivji, Isa G. State and Constitutionalism: An African Debate on Democracy, Harate, Zimbabwe: SARDC, 1991; Ihonvbere, Julius, Towards a New Constitutionalism in Africa, London: Centre for Democracy and Development, 2001. 26. Okan, AO. “Nigeria and a...” Op-cit, pp. 24-25; Ugoh, Chucks S. “Constitution-making ...., Op-cit, pp. 168-171. 27. Saliu, Hassan A. and J. Shola Omotola, “The National Political Reform Conference and the Future of Nigeria’s Democracy”, in Saliu, H.A. et al {eds.), Perspectives on Nation Building and Development in Nigeria, Lagos: Concept Publications, 2007 (forthcoming). 28. Omolola, Shola J. and Hassan. A. Saliu, “Engagement or Dissent? Civil Society, PRONACO and Popular Political Movement in Nigeria”, Proposal accepted for presentation at the Seventh International Conference of the International Society for Third-sector Research (ISTR), on Civil Society and Human Security, July 9-12, 2006, Bangkok, Thailand. 29, Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (ERN). 30. For details, see Sadeeq, Wale, “Mass Media and Democracy,” in Ojo, Emmanuel O, (ed.), Challenges of Sustainable Democracy in Nigeria, Ibadan; John Archers Publisher, pp. 256-260; Ojo, Emmanuel O. “Press Freedom and Democratic Development,” in Saliu, Hassan A. et al (eds.), Democracy and Development in Nigeria, Vol. 1: Conceptual Issues and Democratic Practice, Lagos, Concept Publications, pp. 82-89. 31. Quoted in Wale Sadeeg, Ibid, P. 260. Vol. 2, No, 2 2008 a7Africana 32, Section 7(1) of the 1999 Constitution of Nigeria. 34, President Olusegun Obasanjo, “The Need for Council Reform,” Text of National Broadcast on the Issue of Reviews of Structure of Governance in Nigeria. See The Guardian, 19 June 2003, p.19. 35. The Guardian, 30 June, 2003, p.10. 36. See Gboyega, Alex, Democracy and Development: The Imperative of Local Good Governance, An Inaugurd Lecture, University of Ibadan, 2003; Akhakpe Ighodalo, “Third-Tier of Goverament and Democracy”, in Ojo, Emmanuel O. (ed.) Challenges of Sustainable Democracy in Nigeria, Op- cit, pp 72-88, and Ayandifi, Aina D. “From Native Administration to Local Goverment: The Travails of Grassroots Administration”, in Saliu, Hassan A. etal (eds.), Democracy and Development, Vol. I... Op cit, pp.319-339. 37. See Omotola, Shola J. “Impeachment ‘Threats and Nigeria's Democracy,” in Ojo, Emmanuel O, (ed.), Challenged of Sustainable Democracy in Nigeria, .... Op-cit, pp.183-208; Omotola, Shola J. Public Aititudes Towards Impeachment Threats in Nigeria’s Fourth Republic, Unpublished M.Sc. Thesis, University of Ibadan, Ibadan, Nigeria, 2003. 38. Omotola, Shola J. “Politics of Impeachment and Democratisation in Nigeria: The Impeachment of Governor Rashed Ladoja of Oyo State,” Paper Presented at the CODESRIA Democratic Governance Institute, Dakar, Senegal, August 13 - Sept 7, 2006. 39. Ikuforiji, Adeyemi “Lawmakers are Lawless: Lagos Speaker,” Saturday Punch, 25 November, 2006, pp. 14 & 43. 40. Omotola, Shola J. “Impeachment Threats..., op cit; Omotole, Shola J. The Next Gulf? Oil Politics, Environmental Apocalypse and Rising Tension in the Niger Delta, Occasional Paper Series, 1(3), 2006, African Centre for the Constructive Resolution of Disputes (ACCORD), South Africa. 41. The Constitution of the Federal Republic of Nigeria, 1999, Vol. 2, No. 2 2008 gt Africana 42, Section 305(3) of the 1999 Constitution of Nigeria. 43. For a comprehensive review with respect to Plateau State, see Omotola, Shola J. “Citizenship, Group Violence and Governmental Response: The Declaration of State of Emergency in Plateau State, Nigeria,” in Akinwumi, Olayemi et al (eds.), Inter-Group Relations in Nigeria in the 19M and 20th Centuries, Makurdi, Nigeria: Aboki Publishers, 2006. 44. Akhakpe Ighodalo, “The Third Term, Constitutionalism and the Future of the Nigerian State,” The Constitution: A Journal of Constitutional Development, 6(3), 2006, pp. 33-56; Omotola, Shola J. “Constitutional Review and the Third Term Agenda; Nigeria’s Democracy of the Crossroads,” The Constitution. 4 Journal of Constitutional Development, 6(3), 6(3), pp.57-77; Uhunmwhangho, Amen “The Third Term and the Language of Political Conflict,” The Constitution: A Journal of Constitutional Development, 6(3), pp. 86-103, Olurode, Lai (ed.), The Third Term: To Be or Not to Be? Lagos: Faculty of Social Sciences, University of Lagos, 2006, Sidddique, Abubakar, Obasanjo, The Lusi for Power and its Tragic Implications for Nigeria, Zaria, Nigeria: Centre for Democratic Development Research and Training. 45. Omotola, Shola J. “Constitutional Review...” Op-cit, Ibrahim, Jibrin, “Legislation and the Electoral Process: The Third Term Agenda and the Future of Nigerian Democracy”, The Constitution: A Journal of Constitutional Development, 6(2), pp. 40-60; Ofeimu, Odia, “The President’s Mind”, The Constitution: A Journal of Constitutional Development, 6(2), pp. 75-98. 46. See Amuwo, Adekunle, “Transition Planning in Nigeria: A Critique of the Military-Civil Transition Variant,” Africa Development, XVII(1), 1993, pp 87-98; Ojo, Emmanuel O., “The Military and Political Transition,” in Agbaje, Adigun A.B., Larry Diamond and Ebere Onwudiwe (eds.), Nigeria’s Struggle for Democracy and Good Governance, Tbadan; Toadan University Press, 2004, pp.63-82; and Ojo, Emmanuel O., “The Military and Democratic Transition in Nigeria; An In-depth Analysis of General Babagida’s Transition Programme (1985-1993)”., Journal of Political and Military Sociology, 28(1), Summer 2000, pp.1-20. Vol. 2, No. 2 2008 294Africana 47, Nwabueze, Ben, “Decolonizing and Democratizing the Constitution in Africa,” a paper presented at the First A.G.F. Abdul-Razaq Annual Lecture in Law and Public Policy, University of Horin, August, 1997. 48. Omotola, Shola J., “Violence Against Democracy in Nigeria’s Fourth Republic,” Seminar Series 5, Faculty of Business and Social Sciences, University of llorin, Nigeria, December 7, 2005. 49. Saliu, Hassan A. “Redefining Nigeria’s Political Future”, paper presented to the Nigerian Union of Journalism on the occasion of the 12th Anniversary of the Annulment of the 12 June 1993 Presidential Election, Airport Hotel, Ikeja, Lagos, Nigeria’s 12 June, 2006. 50. Omotola Shola J. “Constitutional Review and the Third Term Agenda: Nigeria’s Democracy at the Crossroads’, The Constitution: A Journal of Constitutional Development, 6(3), 2006, pp. 57-77. Author: J. Shola Omotola E-mail: sholaomotola@yahoo.com Department of Political Science and Public Administration, Redeemer’s University Mowe, Ogun State, Nigeria. Vol. 2, No. 2 2008 304 Africana Applying the Gravity Model to Trade Flows in a Country Under Sanctions: Case of Zimbabwe (1998-2006) Martin Charumbira * ABSTRACT The research looks at the trade flows between Zimbabwe and its major trading partners over the period 1998 to 2006 with the intention of evaluating whether or not the sanctions imposed by the United States and the European Union had effect on depressing economic interaction. The methodology applies the gravity model on data obtained from fifteen countries considered to be Zimbabwe’s major trading partners. The sanctions dummy generally indicates that the so-called ‘targeted sanctions’ in fact significantly diminished the volume of trade between Zimbabwe and its foes. The researcher proposes a reintegration into the global economy inorder to enjoy the full welfare gains from trade. 1, OVERVIEW OF THE STUDY Gravity models are a group of econometric models derived from Newton’s laws of gravity, Newton’s law of gravity states that the gravitational attraction between two bodies is directly proportional to the product of their masses and inversely proportional to the square - Lecturer in the Department of Economics at Midlands State University, Zimbabwe, charumbiram@msu.ac.zw, Tel: +26311880695 Vol. 2, No. 2 2008 sitAfricana of the distance between them®, Gravity models have been popular in the last few decades in explaining the patterns of trade between countries. In the context of trade, the gravity model proposes that the volume of trade is positively influenced by the product of the national incomes of trading partners, and negatively related to the distance between them. Zimbabwe has in the last eight years (2000-2007) experienced high rates of inflation, dwindling export receipts, depletion of foreign exchange reserves, amid a de facto economic sanctions regime. The combined effect of these and other factors has been to generate negative economic growth rates. The isolation of Zimbabwe can probably be traced back to the late 1990s when the country adopted the massive land reform, allowing in the process lawlessness and. threats to private property rights. Having originally agreed to compensate displaced white commercial farmers, the government later changed its position in the light of failure of the Donors’ Conference in 1998. The immediate result of such policies was the sharp decline in agricultural output, generating ripple effects across the economy. The United Kingdom, United States and most European countries then took a retaliatory stance, inviting large scale investor and donor boycotts. It is thus important to view the sanctions imposed on Zimbabwe not in direct context of any other sanctions preventing the country from importing or exporting commodities. The inability of the country to import commodities follows directly from the inability to generate enough foreign currency to meet obligations to foreign suppliers. If such foreign currency were available the country would be at almost full liberty to import commodities from the western countries. The sanctions are ® Fitzsimons E. , Neary J. P. and Hogan V. “Explaining the Volume of North-South Trade in Ireland: A Gravity Model Approach”, The Economic and Social Review, Vol. 30, No. 4, October, 1999, pp. 381-401. Vol. 2, No. 2 2008 32t Africana explicitly declared as “targeted at selected individuals” and to a certain extent trade in specified military hardware. It sounds like quite an unusual punishment package. The intention is thus to whip the regime into reforming the governance practices. But how does a weapon as lethal as sanctions spare the innocent people? Even this paper will not be able to provide an answer or even a guess in that direction! The import and export figures in relation to bilateral trade with the European and other sanctions-initiating countries point towards shrinking volumes, but there has not been any rigorous study to evaluate whether or not such trends are directly related to the sanctions. Table 1: Export and Import Figures for Zimbabwe in relation to Some Countries us UK Germany Year_| Imp(USSM) | Exp(USSM) | Imp(USSM) | Exp(USSM) | Imp(US$M) | Exp(USSM) 1998 | 145518 | 116.466 | 171.607 184.269 | 92.518 | 134.646 1999 | 101.306 | 109.876 142.394 isi.sot_|_113.357_|_ 149.975 2000 | 107.790 | 103.462 36.618 159.903 | 55.042} 142.305 2001 | 48.431 61.464 55.014 130.248 | 47.650__| 155.753 2002 | 66.857 83,392 67.516 157.831 74,622_| 151.047 2003 | 9.883 34.656 15.352 124.964 | 13.328 | 181.258 2004 | 40.438 40.064 81.419 128.232 | 36.646 75.392 2005 |__ 29.706 96.769 34,184 TB.384 46.684 | 28.708 2006 | 138314 | 98.284 59.082 11.669 28,750 8.342 Source: IMF online Database An important fact that can be identified from the statistics in the above table is that Zimbabwe’s UK destined exports which in 1998 were US$184.269 had dropped to as low US$11.669 in 2006, with a Vol. 2, No. 2 2008 334Africana generally visible downward trend over the period. Well, it could be just coincidence! But that would be a rare coincidence given that the imports also display a similar trend. Although the table is only a snap view depicting alienation of the country from trade relations with America and the west, it may not represent the global picture with respect to overall isolation from the rest of the world. However such trends should immediately pose a worry which is worth investigation. To date no study has evaluated the validity of the gravity model on Zimbabwe. In this paper I attempt to document the trade flows of Zimbabwe in the context of the gravity model, which is otherwise borrowed from physics. In pursuing such an investigation, I explicitly state the following as the key objectives: To evaluate significance of sanctions on the volumes of bilateral trade with Zimbabwe. To check the validity of the gravity model in analysing the trade flows of a country reeling under sanctions. 2. LITERATURE REVIEW Although Zimbabwe has been lagging behind in literature on the application of gravity models to trade, a number of related studies have been conducted in other countries. Balistreri and Hillberry (2003) performed an evaluation of the gravity model viz a viz its ability to replace traditional models of international trade on policy analysis. The researchers evaluated the effects of the size of the transport sector on trade volume; the distance and border related costs on price; and the extent of spatial variation in retail prices as it Vol. 2, No. 2 2008 34h Africana affects direction of trade. The researchers conclude that the gravity model is at variance with the practical realities on the welfare implication of trade. Transport costs may have a significant influence on the volumes of trade between countries (Balistreri and Hillberry, 2003). Using the standard gravity model, they found that iceberg melt” were quite significant, which in their conclusion could lead to differences in the cost of living between Canada and United States, A related study of the trade flows between Northern Ireland and Souther Ireland concluded that the volume of trade between the two countries was in compliance with the predictions of the gravity model, thus providing a strong case for its applicability to trade policy (Fitzsimons et al, 1999). A study of the trade flows in a panel of Latin American countries found that there was, in a number of cases, evidence of validity of the gravity-related influences on trade volumes (Carrillo and Carmen, 2002). There is however evidence that the gravity models may not be directly compatible with traditional comparative advantage arguments for trade (Helpman and_Krugman, 1985). They use the gravity model to provide evidence that there may be a bi-directional movement of similar but quite differentiated goods across countries with similar levels of income. Trade of such nature has been observed to be quite significant. Their findings also tend to diminish the long held strength of the factor endowments theories of international trade. 7 Iceberg melt is defined as the cost of transporting a commodity that consumes a certain fraction of the commodity itself. Vol. 2, No. 2 2008 354Africana 3. RESEARCH METHODOLOGY This research uses a pooled panel consisting of fifteen countries, which based on trade volumes are considered to be Zimbabwe’s major trading partners*, The period of study spans from 1998 to 2006, providing a total of 135 observations. The data is stacked, with the countries assuming the role of the cross-sectional identifiers. This makes the data set compatible with the E-Views econometric package for purposes of estimation. The paper adopts the gravity model as the core of its methodology. The original gravity model of Newton has been widely applied to other situations in natural sciences, social sciences, as well as economics (Bergstrand, 1985; Bergstrand, 1989; Deardorff, 1998; Evenett ef a/, 1998; Feenstra, 2001). In international trade the model predicts bilateral trade flows based on the economic sizes of (often measured using GDP in a common currency) and distance between two countries. The basic theoretical form of the gravity model for trade between two countries (é and /) is: EE, dy ii Where: T is the trade flow, E is the economic mass (usually proxied by GDP) of each country, d is the distance between the two countries and A is a constant. Applying natural logs to linearise the expression gives an econometric version of the form: * The fall list of countries used in the research include United Kingdom, South Africa, Botswana, Mozambique, Zambia, Namibia, France, Germany, Switzerland, Malawi, China, United States, Netherlands, DRC and Japan. Vol. 2, No. 2 2008 364 Africana InT, =P, +8, NE, +B,InE, +B, Indy +p where: the constant A becomes part of Bo F is an error term. Some variations of the above model often include variables such as price levels for the countries, common language relationships, common regional block, sanctions (whether country / is adopting a policy of trade isolation against country 2 or vice versa) and colonial history (whether Country / ever colonised Country 2 or vice versa). The gravity model can also be used in international relations to evaluate the impact of pacts, treaties and alliances on trade. The model provides a rather spatial or geographic perspective of trade, In this study, a variant of the above model is adopted and will cater for the effect of sanctions as follows: T, =By + B,E,E; +B,DIS,; +P,RGD+B,SD +p For purposes of estimation, the natural logarithmic version of the model will be applied as: InT, =By +B, ME,E; +B, InDIS, +P,RGD+B,SD +p ‘The trade flow between countries (7) is proxied by the sum of imports and exports at current prices, all denominated in United States Dollar terms. This variable is the dependent in the gravity model to be estimated. The IMF online data bases provided the relevant information on exports and imports. The economic mass of Vol. 2, No. 2 2008 374Africana a country shall be represented by its Gross Domestic Product at current US dollars. The product of the GDPs of the two trading partners (£;Ej) becomes the variable of interest in the estimation of the gravity model. Such data was obtained from the World Bank online data base. Distance (DIS) between countries is often considered to have an influence on the volume of trade flows between countries as it has bearing on transportation costs and associated costs. This study follows the common practice of using the great circle distance between capital cities to represent the estimated spatial separation between any two countries (Carrillo and Carmen, 2002). There are however strong arguments that also dispute the adoption of the great circle distance in the gravity models on the basis of the fact that such a proxy may underestimate the transport cost imposed by distance especially considering the realities of the alternative transportation modes and routes.” The regional block dummy (RGD) is constructed on the basis of whether or not the trading partner is a member of the Southern African Development Community (SADC), and thus shares the preferential trade arrangements with Zimbabwe. The variable takes the value of one if the trading partner is a member and zero, otherwise. The effect of sanctions is expected to be catered for through the sanctions dummy (SD), which takes the value of zero if the country did not conspire to impose sanctions on Zimbabwe and one if, in the post year 2000, the country was part to the conspiracy. A value of zero is thus universally applicable on all countries in the period 1998 to 2000." ° Limao, N. and A. Venables, (2001), “Infrastructure, Geographical Disadvantage, Transport Costs, and Trade”, in The World Bank Economic Review, Vol. 15, No.3, pp. 451 — 479. '° This is based on the well-motivated notion that the sanctions imposed on Zimbabwe were driven by the policies adopted by its government at the Vol. 2, No, 2 2008 38t Africana 4. RESULTS PRESENTATION AND INTERPRETATION Having estimated the gravity model using the E-Views package, this section represents the findings as well as the associated interpretations. It is important to recall that the panel is balanced as it relates to fifteen countries over a nine year period. Table 2: Estimated Gravity Model Variable Coefficient Std. Error t-Statistic Prob. Cc 13.23669_ 2.067127 6.403422 0.0000 LNEE -0.030438 0.055789 -0.545595 0.5863 RGD 71,934973 0.390194 -4.958997 0.0000 SD 0.544655, 0.127043 ~4.287156 0.0000 LNDIS ~0.444438 0.109420. ~4.061780, 0.0001 Weighted Statistics R-squared 0,832887 ‘Adjusted R-squared 0.827745 S.D. dependent var 2.684697 S.E. of regression 1.114246 Sum squared resid 161.4007 F-statistic 161.9792 Durbin-Watson stat 1.839655 Prob(F-statistic) 0.000000 The results generally represent a case of strong model, with the adjusted R? of almost 83%. All coefficients (except that of LNEE) are highly significant. The estimation method factored in the White Heteroskedasticity-Consistent Standard Enors & Covariance. Caution should however be thrown that when applying this to panel data, this variance estimator is robust to heteroskedasticity within each cross-section, but does not account for the possibility of contemporaneous correlation across cross-sections. changeover of the millennium. Activating the sanctions dummy in year 2001 allows a reasonable one year policy response lag. Vol. 2, No. 2 2008 394Africana The coefficients for all variables with the natural logarithm are interpreted as elasticities of the volume of trade with respect to the relevant variable. The regional trade dummy (RGD) is negative and at variance with the theoretical expectations. The dummy variable is constructed under the presumption that the Southem African Development Community (SADC) is a trade enhancing economic grouping, membership of which should be expected to attract larger trade volumes. As such there are strong arguments for a positive a priori sign. The negative sign could possibly be due to the practical lack of capacity by SADC to influence the trade volumes. Such a result is not surprising given that SADC has not been successful in any circles socio-political or economic. The coefficient for the distance between Zimbabwe and its relevant trading partners (LNDIS) is negative. This supposes that the more geographically intimate the trading partners, the larger also is the volume of trade between them. Distance imposes several cost-related restrictions to commodity flows and overally acts as a hindrance to international economic interaction. Neighbouring countries are thus likely to have stronger economic and trade ties than those that are geographically detached, which of course is the basic thrust of the gravity model. Transactions in the global financial sector are probably the only segment that has managed to significantly minimise the distance barrier. Not only is such a finding logical, but it is also consistent with the theoretical motivation of the gravity model as well as the empirical backing thereof (Fitzsimons et a/, 1999; Deardorff, 1998). The sanctions dummy (SD) is negative and significant, a clear and quite compelling indication that the sanctions imposed by the European countries and the United States indeed acted as a deterrent to trade between Zimbabwe and such countries. This also confirms the logical, theoretical and empirical expectations of the base model. Vol. 2, No. 2 2008 40 Africana The inclusion of the sanctions dummy variable in the variant of the gravity model used in this paper is thus vindicated. 5, CONCLUSIONS AND RECOMMENDATIONS There is clear evidence from the findings that distance and sanctions are hindrances to trade enhancement. The gravity model is largely applicable to the sanctions-ridden Zimbabwe. There is a striking resemblance with the behaviour of magnetic forces in Newton’s laws. A non-metallic object placed between two magnets tends to interfere with the magnetic forces, thus reducing the extent of attraction between the opposite poles of the two magnets. Similarly, in trade, sanctions diminish the volumes of trade between the isolated country and those initiating the sanctions. The sanctions thus interfere with what should otherwise be the natural flow of commodities across international boundaries. This paper thus advocates for the adoption of policies that are acceptable to the global political and economic order in order to be spared from the detrimental sanctions. The sanctions dummy fitted relatively well in the gravity model, providing an opportunity for future studies to open a new and exciting front that may be of immediate interest to Zimbabwe and other countries in similar circumstances. The regional economic grouping, SADC, should promote greater trade opportunities between its member countries so that membership has visible benefits on the volumes of bilateral trade and ultimately the general well being of the people. Vol. 2, No. 2 2008 4Africana REFERENCES Anderson, LE. (1979) “A Theoretical Foundation for the Gravity Equation”, American Economic Review, Vol. 69, pp. 106-116. Balistreri, E. and _Hillberry, R. (2003) “Trade Frictions and Welfare in the Gravity Model”, GDLN Multimedia Center Bergstrand, J. H. (1985) “The Gravity Equation in International Trade: Some Microeconomic Foundations and Empirical Evidence”, Review of Economics and Statistics, Vol. 67, No. 3. pp. 474-481. Carrillo, C. and Carmen, A. L. (2002) “Trade Blocks and the Gravity Model: Evidence from Latin American Countries”, University of Essex Deardorff, A. V. (1998) “Determinants of Bilateral Trade: Does Gravity Work in a Neoclassical World?” in The Regionalization of the World Economy, edited by J.A, Frankel, Chicago: University of Chicago Press, 21, Evenett, S., and Keller, W. (1998) “On Theories Explaining the Success of the Gravity Equation”, Nber Working Paper No. 6529. Feenstra, C., Markusen, J. R, and Rose, A. K. (2001) “Using the Gravity Equation to Differentiate among Alternative Theories of Trade”, The Canadian Journal of Economics, Vol. 34, No. 2, pp. 431. Fitzsimons E., Hogan V. and Neary J. P. (1999) “Explaining the Volume of North-South Trade In Ireland: A Gravity Model Approach”, Tie Economic And Social Review, Vol. 30, No. 4, October, pp. 381-401. Frankel, J., Stein, E. and Wei, S. (1998) “Continental Trading Blocs: Are They Natural” Chicago University Press, pp. 91-113. Hamilton, C., and Winters, L.A. (1992) “Opening Up International Trade With Eastern Europe”, Economic Policy, Vol. 14, pp. 7-116. Vol. 2, No. 2 2008 42 Africana Helpman, E., and Krugman, P.R. (1985) Market Structure and Foreign Trade (Cambridge, Massachusetts: Mit Press). Isard, W. (1954) "Location Theory and Trade Theory: Short-Run Analysis", Quarterly Journal of Economics, vol. 68, pp. 305- 322. Leamer, E.E., and Levinsoha, J. (1995) “International Trade ‘Theory: The Evidence”, In G. Grossman and K. Rogoff (Eds.), Handbook of International Economics, Vol. 3, Amsterdam: North-Holland, pp. 1339- 1394, Limao, N. and Venables, A. (2001), “Infrastructure, Geographical Disadvantage, Transport Costs, and Trade”, in World Bank Economic Review, Vol. 15, No.3, pp. 451 479. Mccallum, J. (1995) “National Borders Matter: Canada-U.S. Regional Trade Patterns”, American Economic Review, Vol. 85, pp. 615-623. Tinbergen, J. (1962) “Shaping the World Economy: Suggestions for an International Economic Policy”, New York: Twentieth Century Fund. Websites hittp:/Avww.imf.org http://www.worldbank.org Vol. 2, No. 2 2008 43hAfricana Teaching a Grade Seven Life Orientation Learning Area in a Disadvantaged Diverse Primary School Mabatho Sedibe ABSTRACT Since the inception of the new democratic dispensation in 1994, there has been a drastic change in policy formulation in education with the aim of redressing the imbalances of the past. This policy formulation can to a certain extent affect teachers’ teaching and learning activities and quality of education. The introduction of Life Orientation (LO) in schools is based on the belief that this unique compulsory learning area (LA) forms the foundation of holistic development of the learner, guided by learning outcomes which focus on personal, social, career and physical and recreational development. LO also focuses on the diversity of learners as human beings in their totality as the self in relation to society. The research therefore examined a teacher teaching LO in a classroom full of diverse learners. It attempts to provide information that can assist the government and relevant stakeholders to review the present policies in LO. This paper is therefore focussing on the teacher teaching a grade seven LO in the disadvantaged diverse primary school in the Gauteng province. ‘The research adopted a qualitative ethnographic design. The research indicated that the teacher was frustrated with the ever changing policies, the complex environments they are faced with, insufficient Learning Support Materials (LTSM) and an unsafe environment. Key words: Teachers, disadvantaged area, grade seven, Learning Area and Life Orientation. Vol. 2, No. 2 2008 Africana INTRODUCTION Ever since the inception of the new democratic country in 1994, there has been a drastic change in policy formulation with an aim of redressing the socio-economic, educational and political imbalance of the past. This to a certain extent affects teachers’ activities and quality of education. This is the reason why I conducted this study together with my colleaques who did theirs in different schools {rural and urban) in the Gauteng province. The aim of this study is to provide the government with the findings that could assist in the improvement of a culture of teaching and learning in South African schools. I will start by discussing the contextual background of the school at which this study was conducted, as this will assist with the understanding of how teachers teach LO. ‘The context of the inquiry Permission to conduct the research project was obtained from the Gauteng Department of Education and district office. The principal of the school was approached and he agreed that his school will participate in the research. The research project was conducted in a grade seven Life Orientation classroom consisting of diverse learners, at a primary school located in a black middle class section of the township in the eastern part of Pretoria. The school is classified under Section 21 of the South African School Act (1995), the budget of such a school is allocated and controlled by the government, There were plus minus 900 leamers at the school in 2005 and the numbers increase every year, as stated by the Deputy principal whilst orientating me within the school’s buildings. About 90% of the learners live in the nearby informal settlement while some come from other provinces such as Kwa-Zulu Natal, Limpopo Vol. 2, No. 2 2008 4stAfricana and also Mozambique hence diversity of learners, Amazingly, these foreign learners do not experience any major language problems for a longer period as they are able to adapt and learn the official language which is English with ease with the help of teachers who assist them through code switching approach. Code switching approach in this context refers to where for example an English word or sentence is explained by somebody into the mother tongue of the learner in order to help him/her understand what you are teaching or talking about. In their classroom, some learners used the approach of code switching successfully to assist those who do not understand English. This approach has some disadvantages such as wasting a lot of time in a lesson and creating a lot of noise. The school provides the learners with meals from the government’s feeding scheme project, hence the high percentage of diverse learners from the poverty-stricken informal settlement. The food is cooked at school in a corrugated iron house (tinned house), on a big gas stove. While I visited the school, I was fortunate to meet the cook who showed me the type of food she cooks for the disadvantaged learners. The government’s feeding scheme project is relevant to teacher’s identity formation because if learners are well fed, there is that likelihood that they will concentrate and actively take part in class, thus making the teacher’s work more enjoyable. Due to high unemployment rate in this area, the residents experience high level of crime and violence, thus affecting the teaching and learning at the school. Cross (1999:4) states that “children cannot learn and teachers cannot teach in a place where they are not safe”. One can see the importance of safety at schools as it assists in the smooth running of school activities. It was further mentioned that most learners are orphaned and neglected resulting in insufficient parental involvement in school activities. This is evidenced by the fact that I was asked to take care Vol. 2, No, 2 2008 46 Africana of a learner during my period of research at that school. This statement is strengthened by Dowling (1994:14), when saying that “a joint school-family approach focuses on the addressing of any problem in a dual context”. This implies that consultation, sharing of ideas and co-operation at school and in the community at large is of vital importance for the betterment of teachers’ identity formation and quality of education. That is not done at that particular school because of unemployment rate and also that the learners are staying alone as bread winners. Problem statement Previous study by Rooth (2005) and Prinsloo (2007) have investigated the implementation and investigation of the status of LO in South African schools, but little has been written about teachers teaching LO in disadvantaged primary schools consisting of diverse learners coming from different provinces with different cultures, languages and behaviours. The research problem js therefore the following: How do teachers teach LO learning area in a disadvantaged diverse primary school? The aim of the study The aim of the study is to: investigate how teachers teach Life Orientation (LO) classroom in a disadvantaged diverse primary school, provide information that can assist the Department of Education, other teachers, parents and relevant stakeholders with regard to improvement plans. Vol. 2, No, 2 2008 ayAfricana Theoretical framework The framework within which this research is based on is Vygotsky’s, which is the socio-cultural (social interaction) theory. This theory plays a fundamental role in the development of cognition through mediation as Vygotsky (1978:57) states “every function in the child’s cultural development appears twice: first on the social level, and later on the individual level” i.e (first, between people (inter- psychological) and then inside the child, (intra-psychological).This theory is therefore relevant to this study as it focuses on the social interaction between individuals within a complex society embroiled by various factors. It can be once more stated that in the context of a grade seven LO classroom with different learners where this study is conducted, the relevance of this theory is seen when teachers mediate and interact with the learners and parents either minimally or maximally during school activities such as parent , sports, learners’ progress report and finance meetings.. Vygotsky (1978:91) further mentions that the educational process leads the child’s cognitive development, but does not coincide with it. Vygotsky's theory is complementary to the work of Feurenstein (1980) and others as they also focus on social learning in the context of language learning in children. For example, if one responds to an instruction, this will represent a meaning originating from the interaction between individuals. Feurenstein (1980) adds that “mediated learning experiences are a very important condition for the development of the very unique human conditions ...” It can be once more emphasised that the preceding theoretical framework is important and relevant to this study, as we are in the currently changing education system that needs constant positive interaction between the developing child and the experienced knowledgeable adult, who is capable of producing in the child the appropriate life and learning skills that will enable him/her to Vol. 2, No. 2 2008 ash Africana gradually gain control over real life activities. This implies that mediation can be viewed as an important concept that has a positive connotation, as it leads in most cases to the successful mastery of tasks jointly done by the teacher, learner and parent. Mediation between individuals through diverse tools such as language, people and communication media, in complex levels of system such as families, schools and communities plays a significant role in the development of learners. Research design and methodology In this study I used a qualitative design because I wished to obtain a more detailed understanding of teachers teaching a grade seven LO classroom in a diverse primary school. This is supported by Henning, Van Rensburg & Smit (2004:3) when stating that qualitative studies are those” which aim for depth rather than quantity of understanding” .Ezzy (2002:45) adds that qualitative methods are those which “identify a person’s understanding of the situation as something to be discovered rather than assumed”. This means that one is given the opportunity to explore the events in detail and be closer to the context. I further employed ethnographic, narrative and interpretive research methods as tools of investigating, interpreting and analysing one grade seven diverse classroom, one LO teacher within one particular primary school. Data collection methods Data collection methods used were both ethnographic, observation and interviews. The reason for using more than one data collection technique is to attempt to obtain consistent results about teachers teaching in a grade seven LO classroom of a primary school as supported by Wathal & Jansen (1997:26) that “more than one Vol. 2, No. 2 2008 atAfricana strategy of data collection is very important for conducting research”. In this regard, a grade seven LO teacher was interviewed , classroom observations were also conducted more than once and records of what has been observed were kept , complemented by the shooting of photos and video, taping the school environment, learners, teachers and workers as it is part of the context of the school and the research study. These data were used in the proceeding section for the interpretation of the teacher teaching LO in the grade seven of the school in which this study was conducted. Research question This study is focused on teachers teaching a grade seven LO classroom of a disadvantaged diverse primary school, and the research question that guided this study is: How do teachers teach LO as a compulsory learning area (LA) in disadvantaged diverse primary schools? The underlying principle is that LO seems to be undermined by some schools ever since it became a compulsory LA as advocated by the National Curriculum Statement (NCS). The aim of this NCS is to develop the full potential of each learner as a citizen of a democratic society and this poses a problem to some LO teachers. My argument is that if teachers are not committed to teaching LO as a learning/subject area like other LAS to learners, how will learners actualise their holistic development? How will LO teachers enhance quality of teaching and learning? These types of questions and statements will emerge in the succeeding sections as they play a role in the teaching of LO in primary schools. Findings My findings during the study indicated that teaching LO was a problem to teachers as mentioned earlier in the previous sections. Vol. 2, No. 2 2008 sot Africana The evidence was that classrooms were overcrowded with a teacher/pupil ratio of overl:40 and that made it difficult to the teacher to attend to the learners’ individual needs e.g. different learning problems and backgrounds. There were also insufficient Learner Teacher Support Materials (LTSM) and learners were disruptive, fighting thus creating unsafe school environment, factors that might also hamper a positive teaching and learning culture in schools. It was further shown that even when the teacher was attempting to carry out instructions according to the Government’s policy documents, she was still facing frustrations as working conditions have not yet improved. On this note, teachers are still struggling to teach LO effectively in disadvantaged primary schools ” due to the above mentioned factors and many more others which need to be researched. The above findings are in line with what Mwamwenda (1990:225) noted in his local research when stating that, “pupils in developing countries perform below those in developed countries because of inadequate and poor facilities." This is also linked with The School Register of Needs Survey (Department of Education, 1997) stating that “in Northem Province (Limpopo) ...there was a shortage of 13,670 classrooms...” Czerniewics, Murray and Probyn (2000:99) add that “the average former Department of Education and Training (DET) schools are under-resourced.” This means that teachers teaching LO in disadvantaged schools cannot function effectively with inadequate resources. From my observation and teaching experience of more than twenty years at different disadvantaged schools, it came to my realisation that most of such schools operate with inadequate teaching resources. Discussions Discussions based on observations Classroom Vol. 2, No. 2 2008 sitAfricana In the preceding paragraphs, a global view of the school context at which the study was conducted is presented. This gives us a picture of the type of primary school I was researching. I went straight to the class of Mrs Nobi, (a pseudonym) a class consisting of more than forty learners which is above the teacher/pupil ratio norm of 1:35. Most of the time during my classroom observation, I found the following undesirable learner behaviours: making noise, slumbering and sometimes fighting. For example, an undesirable behaviour was shown when one leamer left his seat and joined another group where he hit a boy. The teacher of course with a sign of concern and portraying that role of being a parent, told him to stop doing that. This type of teacher behaviour is in line with what Reynolds (1996:14) says: “...learners see themselves as successful when taught by a caring and friendly teacher’. This idea is further strengthened by Tauber (1995:225) who says that “teachers should be friendly...but not to be the learners’ friends”. In other words, irrespective of such difficult circumstances mentioned above, (e. g overcrowded classrooms and negative behaviours from learners). Mrs Nobi still shows an ability to discipline the learners as I have seen it being effective during my observation period, thus creating a conducive learning atmosphere. This teacher therefore has passion about her calling and commitment to teachirig. Mrs Nobi’s role as a teacher integrates well with the theoretical framework mentioned in the preceding section as she kept on portraying a mediation and pastoral role in her classroom. I mentioned earlier that the learners are diverse as they come from different poverty stricken homes. This was evidenced by the fact that some learners received food from the feeding scheme of the Government. In addition they did not have grade seven LO text books and school uniform. This is a disadvantage on the side of the learners and it is not easy for teachers to teach learners under such poor conditions as learners bring problems with them to school on a daily basis because they lack basic necessities. This is confirmed by Vol, 2, No. 2 2008 52t Africana Nxumalo (1993:59) when mentioning that “a number of teachers have developed negative attitudes over the years and have low morale because of severe material deprivation in schools”. But at this school Mrs Nobi, (LO teacher) appeared to have not been discouraged, she improvised and cared for her learners. This means that as teachers, the fewer the resources we have, the more intensive they should be utilised. Time-table During the classroom observation I also noticed that LO time- table is a problem in the school as LO is not yet taken as a serious compulsory LA/subject area. 1 have also observed a similar problem in 2007 when J went to evaluate the University student teachers at other schools in Gauteng province during teaching practice/school experience. This poses a problem to dedicated and committed teachers as it will prevent them from finishing their LO syllabuses. Mrs Nobi had the same problem of unfinished grade seven LO syllabus as she repeatedly kept on mentioning that “LO does not have double periods as it used to be in the past”. This means that the department of education need to be advised about the LO time- tabling at schools and workshop teachers once more on how to draw up learning programmes and work schedules. There were moments where Mrs Nobi requested that I should prepare and help in teaching her LO learners which I did more than once as it is my area of specialisation, I even invigilated her learners during June examination in 2005, when she was absent from school attending grade seven LO and Technology workshops. This is evidence of her being overloaded with having to teach many LAS (subjects).Despite the overload it shows a sense of commitment, sharing and teamwork. This is important in any teaching and learning situation as supported by Chrisman (2005:17) who states that “working together create a continual improvement cycle for instruction”. Vol. 2, No. 2 2008 534Africana Discussions based on the interviews When interviewing Mrs Nobi, she responded by repeating that she was overloaded with schoolwork and that stresses her as she cannot even further her studies even though she has a degree and teaching diploma ,but still she consults with other teachers at other schools for sharing the subject knowledge. Sharing the subject knowledge is important as stated by Lewis & Allan (2005:44), that “cooperative working includes sharing resources and exchanging information”. This implies that working together strengthen collaborative teamwork among teachers, learners and community at large. During the interview Mrs Nobi even mentioned that “I feel like leaving the teaching profession and venture into business as I cannot cope with many changes any longer.” She also kept on blaming the Government for too much paper work and workshops conducted by inexperienced facilitators. This blame is also strengthened by Grey (1998:5) when stating that “teachers admit partly the responsibility...saying that the conditions they are forced to work in...are largely the government’s failure to address some of these conditions”. She further said that she has once requested one official from the Department to come and present a multi-level and multi- grade LO lesson in her classroom, but the response was the issuing of circulars. CONCLUSION . It is evident from the above discussions that teachers still face problems in the teaching of LO especially in disadvantaged diverse primary schools because of the policies from the Government and the type of complex environments they are faced with. On this note, it is the responsibility of the Govemment to once more attend to these type of environments i.e overcrowded classrooms, poverty, unsafe environment and also to amend some of their policies with an aim of improving the culture of teaching and learning in schools. Vol. 2, No, 2 2008 S4t Africana REFERENCES Chrisman, V. (2005) Association for supervision and curriculum development. Education Leadership. How schools improve. www. ascd. Org, Vol.62, no5, pp.17-20. Cross, C.-T. (1999) Academic standards or school safety. Education Digest, 65(2):-5. Dowling, E. & Osbome, E, (1994) The family and the school: A joint systems is to problems with children (London: Routledge). Ezzy, D. (2002) Qualitative analysis: Practice and innovation. (Australia: Taylor &Francis Group). Feurenstein, R. (1980) Instrumental enrichment: an intervention program for cognitive modifiability (Chicago: Scott, Foresman). Grey, J. (1998) Fighting for a place to sit: The picture is bleak in deepest, darkest rural schools, laughing of bad conditions, The teacher, 3 (6):5. Henning, E. Van Rensburg, W. & Smit, B. (2004) Finding your way fo qualitative research (Pretoria: Van Schaiks). Mwamwenda, T.S. (1990) Educational Psychology: An African perspective. (Durban: Butterworths) Nxumalo, B. (1993) The culture of leaming: A survey of Kwa-Mashu schools. Indicators, South Africa, 10(2):55-60. Prinsloo, E. (2007) Implementation of Life Orientation programmes in the new curriculum in South African schools: perceptions of principals and ILife Orientation teachers.South African Journal of Education,27:155-170. Reynolds. (1996) Handbook of Research in Second Language Teaching and Learning (Routlegde, Taylor & Francis). Vol. 2, No. 2 2008 5stAfricana Rooth ,E . (2005) An investigation of the status and Practice of Life Orientation in South African Schools in two provinces.PHd dissertation. (Cape:Town University of the Westem Cape). Tauber, R. T. (1995) Classroom management .Sound theory and effective practise (Westport, Conn: Bergin &Garvey). Vygotsky, L. S. (1978) Mind and Society (Cambridge: Harvard University Press). ‘Wathal, M. & Jansen, L, (1997) Research in education (New York: Harper Collins). Author; Mabatho Sedibe is a lecturer in the Department of Educational Psychology at the University of Johannesburg and is presently involved in teacher training for Life Orientation. Her research focuses on teaching the method of Life Orientation (as a compulsory Learning Area) to diverse students. mabathos@uj.ac.za Vol. 2, No. 2 2008 56 Africana Environmental Protection Laws and Sustainable Development in the Niger Delta Dr. Ibaba S. Ibaba ABSTRACT This paper examines the link between Nigerian environmental protection laws and the sustainable development of the Niger Delta. To achieve this objective, the paper highlighted the environmental challenges of the region, and critically examined some environmental laws to determine their usefulness and effectiveness in dealing with environmental problems. The paper argued that due to the privatization of the Nigeria state, and its consequent use by those in power to promote private gains, the state has not shown serious concerns for the environment, as reflected in the weak environmental laws and the lack of enforcement. The paper concludes that the laws have failed to protect the Niger Delta environment, and the resultant environmental degradation has impeded the sustainable development of the region. Good governance is suggested as the most likely solution. Vol. 2, No, 2 2008 STAfricana Introduction Environmental degradation is a major cause of productivity losses and poor human health in the Niger Delta (World Bank, 1995:117). Thus, environmental degradation issues are of topical concern to communities in the area. (NDES, 1995:2). A significant feature of environmental degradation in the Niger Delta is that, it is largely the outcome of pollution, and unsustainable exploitation of natural resources. Significantly, there are numerous Nigerian environmental laws, which seek to conserve, guide, control and mange the exploitation of natural resources, along with the control and prohibition of environmental pollution (FEPA Act, 1990). To this end, the unsustainable exploitation of the environment in the Niger Delta is blamed on the inability or failure of the environmental laws to correct acts, attitudes and beliefs, which impact negatively on the environment. Adibe and Essaghah {1997:76-89) have noted in this regard that: Industrial operators (other than in the petroleum subsector) are apparently not guided by any environmental protection... legislations...where such...legislations exists, conformance with them is not systematically monitored and effectively enforced... it is not surprising that neither industrial establishments nor goverment agencies responsible for over seeing the industrial sector and environmental matters have a mechanism for monitoring and evaluating impacts of industrial pollution with a view to controlling and managing them, Equally, the isolation of the environmental laws from the development programmes and policies of the state, faults in implementation strategy or techniques, inadequate penalties for violation, the non-involvement of the citizenry in the formulation and execution of the laws, and the lack of a clear focus, are also seen as factors which have become obstacles to the proper execution of the laws. Vol. 2, No. 2 2008 sgt Africana In all however, the lack of enforcement of the laws stand out as the most fundamental cause of the inability of the legislations to protect the Niger Delta environment. This is blamed on inadequate funding, corruption, the lack of operational facilities; the low involvement of professionals; the uncooperative attitude of the multinational corporations; and the centralization of legislative powers in the central government, along with the privatization of the Nigerian state. This paper sets out to examine the latter view, and examines its implications on sustainable development. The discussion is guided by the United Nations view of Sustainable Development -- the guarantee of development for all generations; through environmental protection and sustainable exploitation of natural resources. (http://www.iisd.orga/webmaster@isd;WCED,1987:43). Environmental Challenges Of The Niger Delta The ecology of the Delta is characterized by sandy coastal ridge barriers, brackish or saline mangrove; fresh water, permanent and seasonal swamp forest; and dry land rain forest (Okoko and Ibaba, 1997:2). The Niger Delta is characterized by the Rainy season which lasts from April to October, and the Dry season and Harmattan which briefly intervenes the latter period. Nearly three quarters of the area is covered by water made of lagoons, creeks, rivers and lakes (OMPADEC Report, 1993:80-82). The remainder is largely made of swampy land, which is usually flooded for about four months in the year due to the overflowing waters of the lower Niger. The environment faces a number of challenges, which constrain the development of the region. Vol. 2, No. 2 2008 SotAfricana The environmental problems of the area are grouped into two broad categories — oil related and non-oil related environmental problems. According to the Shell Petroleum Development Company (SPDC), the most common environmental problems related to the oil industry are: oil spills, gas flaring, dredging of canals and land for the construction of facilities. (http:;www.ShellNigeria.com). The non- oil related environmental challenges include: Coastal/river back erosion, flooding, spread of exotic species, agricultural land degradation, fisheries depletion, inadequate sanitary and waste management, and emission discharges from industries. (www.shellnigeria.com) Table 1 provides details on the environmental problems. Table 1 Major Causes of Environmental Degradation in the Niger Delta Problem Type | Problem Direct Causes Indirect Causes Tand resource | Erosion-coastal | Sediment Toss Upstream dams degradation infrastructure ‘i construction population pressure Weak enforcement ‘Natural and human induced and subsidence Sea level rise, Erosion-riverbank | Heavy rainfall. Upstream dams Unsustainable Population pressure farming. Semings Weak enforcement Sediment oss Natural and human induced and subsidence Sea level rise. Vol. 2, No. 2 2008 60t Africana Flooding Heavy rainfall Upstream dams Agricultural population pressure expansion reduced tpetteam water Weak enforcement retention ‘Natural and human induced and subsidence Sea level rise. Sea level rise International air emission Agricultural land | Climate change Population pressure Upstream dams Degradation Unsustainable Lack of inputs. fanning Decreased sedimentation Excessive flooding Tnereased erosion, Renewable Fisheries Fishing techniques | Population pressure Resource 7 ‘ching i ‘ Degradation -stock depletion | Fishing intensity Weak enforcement Post harvest losses. | Open access (limited) -habitat ‘Trawling pollution | Post harvest losses. degradation dat Oil acti Weak enforcement Nutrient loss. Open access Upstream dams. Forestry. Agricultural Population pressure . expansion deforestation Inftastracture Weak enforcement erection expansion Infrastructure expansion Indiscriminate logging Open access (limited) Vol. 2, No. 2 2008 61+Africana Biodiversity loss Hunting Habitat loss, Incomplete markets Population pressure Infrastructure expansion Africana ‘Air pollution Tndusirial population | Weak enforeement -gas flaring, Vehicular emissions. | Open access industrial vehicular 0 Incomplete markets Subsidies. Solid wastes Inadequate waste | Population pressure -industrial manegemen Weak enforcement ‘municipal Inadequate urban infiastotare Open access Incomplete markets Exotic species Introduction (1,2) Weak enforcement . Forest degradation _ Expansion- Open access (limited) () water Incomplete markets. hyacinth (2) Nypa palm water Weak enforcement contamination Open access. Environmental | -oil Inadequate Weak enforcement Resouree wastewater Degradation management Incomplete markets. Spills and leaks industria Tradequate ‘Weak enforcement wastewater management Open access. Incomplete markets stoxie and Inadequate waste | Weak enforcement hazardous management substances Inadeguate ua Open access inadequate urban inffactueture Incomplete markets. -others Inadequate sewage —_| Population pressure treatinent Weak enforcement Open access Incomplete markets Vol. 2, No.2 2008 624 Source: World Bank, 1995:86-88. Also, communication is very difficult, and perhaps more significantly, the cost of development (provision of social infrastructure, etc) is exceedingly high. The cost of providing infrastructure in the region doubles and at times triples the cost of infrastructural development in the other parts (South, East, West and the North). For example, the cost of land reclamation alone can fund a project in other areas. Thus, the Bayelsa State government has spent a whopping 500 million naira on land preparation alone (sand- filling) for a 500-bed hospital in the State capital. This sum can fund the entire project in other areas. It cost about N150 million to construct a kilometer of road in the Niger Delta, as against N25 million in other areas. (Ibaba, 2004:58). Meanwhile, the fund available for development in region is grossly inadequate. The lack of infrastructure and basic amenities, and the high level of poverty, about 70 percent (UNDP, 2006:69), impact negatively on the Niger Delta environment. On infrastructure, the impact is in two dimensions. The absence of basic infrastructure puts pressure on land, For example, the lack of roads makes it difficult for the rural populace to obtain kerosene and when they do, it is very expensive. Thus, over 80 percent of rural people use fuel Vol. 2, No. 2 2008 63+Africana wood as energy for domestic use; thus adding to the problems of deforestation. At another level, the drive to provide social infrastructure promotes environmental degradation. For example, the sand-filling (land reclamation) of areas, provides amenities (buildings, roads, etc) but causes severe flooding in other areas. On poverty, it is widely known to be a great degrader of the environment. A significant point to note here is that poverty promotes unsustainable exploitation of natural resources. For example, poverty leads to the over-exploitation of farmlands. Similarly, all kinds of fish including fingerlings are appropriated. In times past, fingerlings and other categories of small fish were selected and thrown back into the river. The low level of technological development in the region also constitutes a problem to the environment, as it makes the taming of the environment difficult. Some environmental problems of the state, the spread of water hyacinth for example, are potential sources of development, but for the lack of technology. Studies have shown that water hyacinth, considered to be one of the worst weeds in the world, and widely found in the Niger Delta, has the following uses: @ Water hyacinth has a high ash content of 14.3 percent and important nutrients, which could make it a valuable composite fertilizer. Gi) The fibres and dried stem can be used for straps of shoes and clogs for baskets and chairs. (iii) The fresh petioles are based stalks for the cut flower industry (onc ‘bundle composed of 10 water hyacinth cluster costs 1.5 — 5.0 pesos in Metro Manila outlets). (iv) It is a potential source of activated carbon for batteries, of carbon black for paint, and for cement boards. wy) Water hyacinths have been used for biogas production. From one ton of water hyacinth, a biodigester can produce 373m’ of methane gas (5,700k cal). Vol. 2, No. 2 2008 eae Africana (vi) Water hyacinth is used as a low-cost wastewater treatment in which the plant absorbs nutrient and toxic residues. (OMPADEC Report, 1993:4). Also of significance is the challenge violent conflicts pose to the environment through the destruction of infrastructure, settlements fishing grounds/farmlands and lives. Equally, the sabotage of oil installations undermines environmental quality through oil spillages. In all, the literature on the Niger Delta environment identify environmental degradation as the greatest challenge to the region’s environment; three major challenges or problems have been identified - Jand resources degradation, renewable resource degradation, and environmental resource degradation. (World Bank, 1995:86-88). State Legislations On The Environment And Sustainable Development In The Niger Delta Environmental protection legislation in Nigeria dates back to the colonial period. The numerous environmental laws include: the Forest Ordinance (1937); the Water Works Act (1915); the Public Health Act (1917); (1958); the Petroleum Drilling and Production Regulation (1969); the Oil in Navigable Waters Act (1968); the Ministry Act (1969); the Associated Gas Re-injection Act (1979); the Federal Environmental Protection Agency (FEPA) Act (1988). Similarly, the Federal Government created the National Resources Conservation Council (NRCC) in 1988, and also launched the National Policy on the Environment in 1989. (Emeribe, 2000). Despite these legislations and policies on environmental protection and conservation, environmental degradation has continued to worsen in the Niger Delta. The widespread view blames this on the Vol. 2, No. 2 2008 65+Africana ineffective execution of environmental protection laws in the country. The World Bank (1995), identifies the lack of enforcement of environmental laws as one of the greatest problems of the Niger Delta environment. Enforcement agencies lack the mechanism for monitoring and evaluating the impacts of industrial pollution with a view to controlling them. (Adibe and Essaghah, 1999:76-89). The isolation of the environmental laws from the development programmes and policies of the state, faults in implementation strategy or techniques, inadequate penalties for violation, the non- involvement of citizens in the formulation and execution of the laws, and the lack of a clear focus, are also seen as factors which have become obstacles to the proper execution of the laws. The lack of enforcement of environment laws is seen as the most fundamental cause of the inability of the legislations to promote the sustainable exploitation of natural resources in the Niger Delta. This paper blames this on the nature of the Nigerian State. Politics in Nigeria is seen as a means of accumulating wealth. The consequence is the privatization of the State and its subsequent use for the pursuit of private interests (Aaron, 2006; Ekekwe, 1986; Ake, 2001°, Ake, 2001°; Oyovbuaire, 1980). The result of this is the neglect of the environment. Thus, the provisions of environment laws create gaps, which weaken enforcement; standards and regulations that could be contravened are loosely specified and vaguely defined (Adibe and Essaghah, 1999:83). Some environmental protection laws are analyzed below to demonstrate why and how they have failed to protect the environment. (a) The Environmental Impact Assessment Act (EIA) The EIA Act among others, sets out the procedures and methods to enable the prior consideration of environmental impact assessment on certain public or private projects. To achieve the objective of the Act, the Federal Environmental Vol. 2, No. 2 2008 661 Africana Protection Agency (FEPA) now Federal Ministry of Environment is empowered to facilitate environmental assessment of projects. Essentially, the EIA law requires that before the commencement of any new project, its environmental impact must be assessed or evaluated with a view to mitigating its effects on the environment. Accordingly, section 2(i) of the Act, states that: The public or private sector of the economy shall not undertake, embark or authorize projects or activities without prior consideration, at an early stage, of their environmental effects. Equally, section 1(2) provides that: Where the extent, nature or location of a proposed project or activity is such that is likely to significantly affect the environment, its environmental impact assessment shall be undertaken in accordance with the provision of this Act. The “minimum content of environmental impact assessment” was prescribed as follows: @ A description of the proposed activities; Gi) A description of the potentially affected environment including specific information necessary to identify and assess the environmental effect of the proposed activities; Gii) A description of the practical activities, as appropriate; (iv) An assessment of the likely or potential environmental impacts of the proposed activity and the altematives, Vol. 2, No. 2 2008 ontAfricana including the direct or indirect cumulative, short term effects; (v) An identification and description of measures to mitigate adverse environmental impacts of proposed activity and assessment of those measures; (vi) An indication of gaps in knowledge and uncertainty, which may be encountered in computing the required information; (vii) An indication of whether the environment of any other state or local government area or areas outside Nigeria is likely to be affected by the proposed activity or its alternatives. With the above, the federal ministry of environment evaluates the submissions, holds wide consultations with all stake holders and then takes a decision; it is the final arbiter on such issues. In the Niger Delta, the law is not adhered to strictly in the private sector; only companies in the oil and gas sector reasonably abide by the law. Even at that they undertake unethical practices, which flout the law. Establishments in the private sector (manufacturing companies, etc) hardly undertake EJA studies for their activities, even though such activities impact on the environment. This is also true of public projects undertaken by the three tries of government (Federal, State and Local Governments). Oil companies, who embark on EIA studies, violate the tules. There are instances where they commence the project before the EIA study is done. Thus, for example, the Shell Petroleum Development Company (SPDC) commenced a multi-billion dollars project, the Estuary Amatu (E.A) project which cut across communities in Bayelsa and Delta Vol. 2, No. 2 2008 68t Africana States before EIA commenced (Environment Watch, 15/8/2001). Also, EIA studies are not properly done, creating problems for communities. For example, the construction of the Gbarain link road (in Bayelsa State) by the SPDC without a proper EIA study has created environmental problems and socio-economic difficulties for the host communities (Opolo, Obunugha, Onopa, Gbarantory, etc), the identified problems include: severe or excessive flooding of forest and farmlands leading to the destruction of food crops, economic trees, and a reduction in available farmland, thus setting in land fragmentation in the affected locality, permanent flooding of fishponds, lakes and creeks, preventing the owners from harvesting them; reduction of games and wildlife populations in the forest; and blockage of communication/access routes among the neighboring communities. (Environment Watch, 25/03/2002). At the level of government, compliance with the EIA Act is nearly zero. Even when done, it becomes controversial as evidenced by the EIA report on the dredging of the River Niger. While the government is satisfied with the report and is poised to commence the project, the people consider the report to be “fraudulent”. Their contention is that the EIA report does not assure them of adequate mitigating measures to safeguard the environment from possible disasters arising from the dredging of the river. (Bayelsa State Ministry of Environment Report, 2000). Similarly, state governments also pay lip service to the law. While they insist on EJA studies before projects are executed by the oil companies, they hardly do same. Thus, development projects of the states have impacted greatly on Vol. 2, No. 2 2008 694Africana the Niger Delta environment. For example, a report of the Bayelsa State Ministry of Environment (2000) points out that the state is losing River Nun Forest Reserve to Niger Delta University owned by the Bayelsa State government. It is important to observe that the EIA law has some defects, which probably account for its ineffectiveness. Firstly, some projects are excluded from mandatory EIA studies. Section 15, subsection 1 of the Act provides that where: @ In the opinion of the agency the project is in the list of projects which the President, Commander-In-Chief of the Armed Forces or the Council is of the opinion that the environmental effects of the project is likely to be minimal; (i) The project is to be carried out during national emergency for which temporary measures have been taken by the government, (iii) The project is to be carried out in response to circumstances that in the opinion of the agency, the project is in the interest of public health or safety. Subsection two emphasize that: For greater certainty, where the federal, state or local government exercises power or performs a duty or function for the purpose of enabling projects to be carried out, an environmental assessment may not be required if — the project has been identified at the time the power is exercised or the duty or function is performed. With regard to the mandatory study activities, the provisions are limited. For example, while land reclamation is a mandatory study activity, EIA is only required if the area Vol. 2, No, 2 2008 704 Africana under consideration is 50 hectares or more. The implication therefore is that where the area is less than 50 hectares, EIA study is not required. Significantly however, the accumulation of the activities that are exempt from EIA studies can greatly degrade the environment. For example, as regards housing, EIA study is required if the area is more than 50 hectares. Thus, if a government develops houses in different locations, and the area is Jess than 50 hectares, it will not require study. Now, if we have 10 sites of 30 hectares that will not require EIA study. Equally, it is doubtful if developments less than 50 hectares will not create environmental problems. The penalty for violating the provisions of the Act is too little to deter offenders, particularly corporate bodies. Section 62 of the Act which deals with offence and penalty provides N100,000 fine or five years imprisonment for an individual offender, and a minimum of N1m for corporate offenders. Clearly, one million naira (N1,000,000) is too small a sum to compel corporate bodies (particularly the oil companies and governments) to obey the law. It is significant to note that the enforcement of the EIA law lies with the Federal Ministry of Environment. The states only perform peripheral functions. This is clearly inappropriate as it largely excludes the regulatory institutions of stakeholder states in the projects for which EJA’s are required. (Environment Watch, 15/04/1998). A complaint at the state level is that the federal agency responds too slowly to their inputs, complaints and observations. The local communities who are the hosts to projects for which EIA studies are undertaken are either not consulted, or ‘Vol. 2, No. 2 2008 nmAfricana (6) not involved effectively in such studies. Thus, the benefit of involving the people, immense knowledge on the ecological process that can be integrated to enrich project design, team spirit that would elicit the commitment of stakeholders, and cooperation, is lost. (Adibe and Essaghah, 1999:17-18). Thus, the EIA Act has done very little to protect the Niger Delta environment. The Federal Environmental Protection Agency Act The Federal Environmental Protection Agency (FEPA), was created by Act No.58 of 1988, as part of the attempts by the Federal Government to implement appropriate projects designed to ameliorate ecological problems in the country. Section 4 of the Act, defines the functions of the Agency as the “protection and development of the environment in general and environmental technology, including initiation of policy in relation to environmental research and technology”. The specific functions of the organization is spelt out by section 4 of the law as: @ Advise the federal government on national environmental policies and priorities and on scientific and technological activities affecting the environment; (ii) Prepare periodic master-plans for the development of environment and technology and advise the federal government on the financial requirements for the implementation of such plans; (ii) Promote co-operation in environmental science and technology with similar bodies, connected with the protection of the environment; (iv) Cooperate with federal and state ministries, local government councils, statutory bodies and research Vol. 2, No. 2 2008 74 Africana agencies on matters and facilities relating to environmental protection; and (v) To carry out such other activities as are necessary or expedient for the full discharge of the functions of the agency under this Act. A significant feature of the FEPA law is the emphasis placed on pollution control and prohibition. Accordingly, section 20 prescribes penalties for the discharge of hazardous substances into the environment. Subsection 2 of section 20 prescribes N100,000 fine or 10 years imprisonment for an individual offender, while subsection 3 stipulates a fine not exceeding N500,000 and “an additional fine of N10,000 for everyday the offence subsists” for corporate offenders. It is clear that the penalty is not stringent enough and this probably explains the violation of the law as evidenced by worsening environmental pollution in the Niger Delta area. This is also true of the “general penalties” as provided in section 35, which prescribes a maximum fine of N20,000 or a maximum 2 year imprisonment for individual offenders. The literature on the Nigerian environment sees the FEPA law as the most serious attempt by the Federal Government to protect the Nigerian environment. (Adibe and Essaghah 1999:86; Alapiki, 2004:244). Thus, it is expected that the law would adequately and comprehensively address environmental problems in the Niger Delta area. However, this is not the case. Environmental issues such as indiscriminate logging, environment unfriendly agricultural practices (such as slope wise cultivation which promotes erosion), the use of dangerous chemicals for fishing, etc, are not covered by the Act, Vol. 2, No. 2 2008 TtAfricana This demonstrates that the concentration of legislative power in the federal government has led to the promulgation of environmental laws, which hardly take local condition into account. Again, even when provisions on the petroleum industry were made, they were not far-reaching. The only mention of the petroleum industry in section 23 of the Act states that: The Agency shall co-operate with the Ministry of Petroleum Resources (Petroleum Resources Department) for the removal of oil related pollutants discharge into the Nigerian environment and play such supportive role as the Ministry of Petroleum Resources (Petroleum Resources Department) may from time to time require from the agency. Given the impact of the oil industry on the Niger Delta environment, this provision is clearly inadequate. Worse, the law created gaps that have been exploited by oil multinationals, to the disadvantage of the Niger Delta environment, One area where this is evident is the vague provision of section 36 of the Act. According to this section: When any offence against this Act or any regulations made there has been committed by a body corporate or by a member of a partnership or other firm or business, every director or officer of that body corporate or any member of the partnership or other person concerned with the management of such firm or business shall, on conviction, be liable to a fine not exceeding N500,000 for such offence and in addition shall be Vol. 2, No. 2 2008 Tat Africana directed to pay compensation for any damage resulting from such breach thereof or to repair and restore the polluted environmental area to an acceptable level as approved by the Agency. Having made this useful provision, the Act goes further to make a provision that “unless he proves to the satisfaction of the court that: @ He used due diligence to secure compliance with the Act; and Gi) Such offence was committed without his knowledge, consent or approval. The later provision creates a very wide gap, which makes the law defective. It is exploited to avoid punishment to the detriment of the environment. Oil spillages and gas flaring that are not adequately dealt with by the law have induced environmental degradation, and undermined the development of local economies. See table two below: ‘Vol. 2, No. 2 2008 754| Africana i ' : Table 2 The Impact of the oil industry on the Niger Delta Environment Activity Impact T Exploration Destruction of vegetation, farmlands, (a) Geophysical investigation | human settlement. Clearing agricultural land and damaging the soil. (b) Geology survey Disturbance of fauna and flora habitat. Accumulation of toxic waste material (©) Drilling with the effect of: () Oil pollution of the land, sea or beaches. Gi) Pollution of underground water for plants, Vol. 2, No. 2 2008 76+ Africana Production processing (@) Flat and tank farms (b) Gas flaring (c) Tanker loading locations (@) Storage depots (©) Transportation (Refinery Land pollution from cumulative effects, long-term Water and land pollution from sanitary waste, used lubricating oil and solid waste. (@® Air pollution from gas and oil processing evaporation and flaring, Killing of vegetation around the flare area. Production of heat. Suppressing the growth and flowering of some plants. (*) Reduces and — diminishes agricultural production, (vi) Destruction of mangrove swamp and salt marsh, Spillage during loading operations with all its accompanying effects on the fauna and flora. Land pollution from effluent waste and solid wastes of chemical cans and drums for the establishment of the storage depots. Destruction of farmlands and environmentally sensitive areas. Land pollution from —_ effluent discharge, which contains wide range organic pollutants such as phenol hydrogen, sulphide, ammonia and gas. Source: Federal Ministry of Housing and Environment, circular, 1983. The major and pervasive impact of oil-related environmental problems is the drastic decrease in the nutrient value of the soil, Vol. 2, No. 2 2008 ThAfricana decrease in available land mass for cultivation (which has contributed to a decrease in the bush fallow period from 3-5 years to one year in many of the communities), the destruction of food and cash crops, and marine life, which ultimately leads to a decline in agricultural output, and by extension, its development. Ibaba, 2005: 34) Gas flaring has equally reduced crop yield. For example crop yields reduce by forty five percent within six hundred meters of gas flare site. (Salau, 1993: 19). Also of significance here is the destruction of marine life. The particular importance of this lies with the fact that fishing constitutes the major occupation in many of the communities. Furthermore, about 80 percent of protein food in the local communities is sourced through fish. What this means is that oil spillages have health implications. It has been established for instance that the polluted water (which not only serves as fishing grounds but also as the only source of water for drinking and other domestic use) causes diseases in the communities. It stands to reason from the above that oil spillages worsen the health problems of the people, who grossly lack medical facilities. This exacerbates rural poverty, given that poor health reduces productivity. (@ Bayelsa State Environment and Development Planning Authority The Bayelsa State Environment and Development Planning. Authority Edict was established for “the protection and development of the environment and biodiversity conservation and sustainable development of the State’s natural resources”. (Section, 6/i). Part seven of the Edict, which deals with offences and penalties prohibits the following activities: Vol. 2, No. 2 2008 78+ Africana @ Discharge of untreated waste; ii Discharge of oil, grease or spill oil; ii) Discharge of injurious gas such as sulphur dioxide, oxides of nitrogen, hydrogen, sulphides, carbon, ammonia, chlorine, smoke, metallic dust and particles; (iv) Storage of chemicals, oil, lubricants, petroleum products, cement (except for use in buildings), radioactive materials or gases in residential and commercial building (without the permission of the authority); (v) Waste dumping without permission; (vi) Dumping of toxic or hazardous matter without permission; (vii) Indiscriminate sinking of well and borehole; (viii) Use of chemical (Gamalin 20 or any herbicide or insecticide or other chemicals) to kill fish or destroy marine life in any river, stream, lake or pond within the state. (Section 30-39). While the above provisions are not too different from those of FEPA, the last provision (prohibition of use of chemical in rivers, etc) is significant. Being a state government law, it captured the local condition of the area, where chemicals are used for fishing in total disregard of the environmental cost. However, the Edict failed to address the problem of logging, as it was not mentioned. This probably explains the indiscriminate logging, which has promoted deforestation in the state. The state looses 200,000 trees and 3 percent of its forest annually. (see table below). Vol. 2, No. 2 2008Africana 1 Table 3 Timber Exploitation in Bayelsa State Name of Species Common Name | Volume of s Wood Exploited Nv (m3) i 1 Ceiba pentandra Cotton 528.57 | 2 ‘Symphonia globulifera = 167.34 3 Alstonial boonei = 71.80 4 Mytragyna ciliata ‘Abura 40.15 3 Pyenanthus argolensis = 30.13 6 Nauclea diderishit Oppe 15.59 7 Pterrocarpus Osun - 1472 g Khaya invorensis Mahogany 1143 9 Lophira alata Ironwood 11.04 1 Daniella ogae = B49 ul Terminalia superba - 8.42, 12 Xylopia africana - 5.18 13 Terminalia ivorensis - 3.82 4 Sarcoglotti gabonensis, = 1.66 3 Euapacea guinensis ~ 1.61 Total 926.31 Source: Bayelsa State Ministry of Environment, Forestry Department, 2000, p.1 Vol. 2, No. 2 2008 sol Africana The Edict, like the FEPA Act, is characterized by gaps, which weaken enforcement. For example, while spillage and waste discharge attracts a N200,000 fine, in addition to the operator or owner of the facility being liable for: @ Any cost incurred by the state, local government or their agents in the abatement or removal of the discharge; Gi) Any cost incurred by the state or local government in replacing any damaged facility or in restoring the ecology; The Edict at the same time provides that the above will not be applicable if “the owner or operator of...facility can prove that a waste or spillage discharge was caused by a natural disaster or an act of war or by sabotage” (section 48/i). This may explain why many oil spills are now classified as “sabotage”, by the oil companies. Also of note is the general penalty for violating the provisions of the Edict, which is a fine of N200,000 as against the N20,000 prescribed by the FEPA law. The state authorities are more stringent than the federal authorities; perhaps because they (the state authorities) are close to the citizens who bear the direct burden of environmental degradation. It is noteworthy that the law has suffered from “weak monitoring and enforcement capacity” (World Bank, 1995:57). The inadequate enforcement of the Edict is attributable to the fact that some provisions of the law are not congruent with the customs of the people. A classic example is the provision in section 39, which prohibits the use of chemicals for fishing. Vol. 2, No. 2 2008 sitAfricana In Bayelsa State, the use of chemicals for fishing was prohibited by customary law even before the Environment Protection Edict came into force. However, this was predicated on a customary practice where families and communities owned creeks, lakes or rivers. Accordingly, such owners enforced the law. However, the state Edict is based on the ownership of these creeks, lakes and rivers by the state. Because the laws are in conflict with custom and tradition, they have been ignored by the people (Environment Watch, 15/12/2001) What is discernible from the above is that the Bayelsa State Environment Protection Law has failed to achieve its objective — sustainable development in the state. For example, the use of chemicals for fishing is widespread in the state. The chemicals lead to a destruction of marine life. Meaning while, fishing is a major occupation (second to farming, the dominant occupation) and about 80% of protein food in the local communities is sourced from fish. (®) Delta State Environmental Protection Agency (DELSEPA) Edict The Delta State Environmental Protection Agency (DELSEPA) was created for “the protection and development of the environment in general and environmental technology, including initiation of policy in relation to environmental research and technology, planning, design and construction of ecological and environmental facilities”. The provisions of the DELSEPA Edict were virtually the same with that of FEPA, It placed emphasis on pollution control and prohibition. The areas it essentially focused on Africana are “prevention of industrial pollution”, “on-shore or off- shore discharge of waste”, and the use of “chemicals for fishing and farming”. Similar to the Bayelsa State Environmental Law, it responded to local conditions by outlawing the use of chemicals for fishing. Section 34 of the Edict states that: “except such as approved by the Federal or State authorities for the purpose, the use of any chemical substance by any person or body whether corporate or incorporate for fishing or farming purposes shall be no offence”. However, it failed to address the problem of logging and deforestation. Again, like the other environmental laws earlier discussed, the penalty for violating the Edict is too little. Section 41 stipulates a N24,000.00 or one year imprisonment for individual offenders; while section 40 prescribes N500,000 for corporate offenders. It further provides for remediation of impacted areas, The above provision is however not applicable if there is proof that the violation was “solely caused by a natural disaster or an act of sabotage”. Here again, gaps are created and this is exploited to weaken the effectiveness of the law. The DELSEPA Edict failed to effectively protect the Delta State Environment. Its provisions are not far reaching; as for example, it did not spell out environmental standards for the oil and gas industry. This perhaps is attributable to the fact that it is limited by the FEPA law. In all, the evidence of its ineffectiveness is conspicuous in the state (indiscriminate dumping of wastes, fishing with outlawed chemicals, etc). The reasons for the ineffective execution of the Delta State Environmental Protection Law are not different from the Vol. 2, No. 2 Vol. 2, No. 2 2008 2008 82+ 83+Africana ones earlier highlighted. However, the law places too much emphasis on revenue derivable from environmental sanitation offences and effluent discharge fees, as against the tackling of the adverse environmental problems plaguing the state. CONCLUSION The World Commission on Environment and Development (WCED) brought to the fore the need to balance development and its cost to the environment; thus making “sustainable development a global concern. In Nigeria the enthronement of “sustainable development is a national objective that is highly ranked. To this end, state legislation on the environment has become a major instrument in the quest for sustainable development. Essentially, the laws seek to correct acts and attitudes which degrade the environment, and at the same time guide and control natural resource exploitation. This paper viewed and analyzed the impact of these environmental legislations on the promotion of sustainable development in the Niger Delta. The paper notes that environmental protection laws in Nigeria (at Federal and State levels) are largely not effective. The paper blames this on the lack of enforcement of the legislations, due to the privatization of the State and the resultant neglect of the environment, The provisions of the laws create gaps, which weaken enforcement. ‘Thus for example, the Petroleum Act, which regulates operations of the oil industry prescribes no penalty for offenders. Equally, the FEPA Act only prescribes a N20,000 fine. Vol. 2, No, 2 2008 84h Africana Again, given the nature of Nigerian Federalism, legislative powers are concentrated in the central government, which provides the framework for environmental legislation, Accordingly, the environmental protection Jaws are largely out of sync with local conditions. To this end, they are ignored. It is clear that environment laws have failed to protect the environment. Probably for this reason, the government has just established the National Environmental Standards Regulation Enforcement Agency (NESREA). Meanwhile, the effectiveness of the laws has impeded sustainable development of the Niger Delta region. On the way forward, the paper see as the most likely option, the institution of good governance (at all levels of government); a government that is predicated on transparency, accountability, frugality in the management of national resources, sincerity, discipline and commitment to national development objectives. REFERENCES Aaron, KK. (2006), Can a Privatized State Privatized? Insights and Experience from Nigeria’s Privatization Programme, THEDI Monograph No.1, Kemuela Publications, Port Harcourt, Nigeria. Adibe, E.C. and A.A.E, Essagha (1999), Environmental Impact Assessment in Nigeria (vol.2), Immaculate Publications Limited, Enugu. Ake, C. (2001), “The State in Contemporary Aftica”, in H.E. Alapiki (eds), The Nigerian Political Process, Emhai Printing and Publishing Company, Port Harcourt, Nigeria. Vol. 2, No, 2 2008 stAfricana Ake, C. (2001), The Political Question, in H-E. Alapiki (eds), The Nigerian Political Process, Emhai Printing and Publishing Company, Port Harcourt, Nigeria. Alapiki, HE. (2004), “The Environment and Sustainable Development, in HE. Alapiki (eds), The Nigerian Political Process, Amethyst and Colleagues Publishers, Port Harcourt, Nigeria. Bayelsa State Govemment Official Gazette (1998), Environment and Development Planning Authority Edict. Bayelsa State Ministry of Environment (2000), Forestry Department Report. Delta State Government Official Gazette (1997), Delta State Environmental Protection Agency Edict, Vol.7, No.53. Ekekwe, E, (1986), Class and State in Nigeria, Macmillan, Nigeria. Environment Watch, April 15, 1998. Environment Watch, August 1 — 15, 2001. Environment Watch, August 11 — 25, 2002, Environmental Impact Assessment Act (1992), Federal Ministry of Information and Culture, Lagos, Nigeria. Federal Environmental Protection Agency Act (1990), CAP 131, Laws of the Federation of Nigeria. Toaba S. Ibaba (2004), “The Environment and Sustainable Development in the Niger Delta: The Bayelsa State Experience”, Doctoral Dissertation, Department of Political/Administrative Studies, University of Port Harcourt, Nigeria, Niger Delta Environmental Survey (1995) Briefing Note. Vol. 2, No, 2 2008 86! Africana Okoko Kimse, and Ibaba S. Ibaba (1997), “Oil Spillages and Community Disturbances: The SPDC and the Niger Delta Experience”, in Nigerian Journal of Oil and Politics, Vol.1, No.1, September, pp.56-69. OMPADEC Quarterly Report, (1993), Vol.1, No.1, October. Online, http://www iisd.org/webmaster@isd. Online, httpywww.ShellNigeria.com/ecology/oilprobsths.asp. Oyovbuaire, S. (1980), “The Nigerian State as Conceptual Variabie”, in Cliff Eéogun (eds) Nigeria: Politics, Administration and Development, The Nigeria Political Science Association, University of Port Harcourt, Nigeria, People and Environment (2000), Shell Petroleum Development Company (SPDC) Annual Report. Salau, A.T.(1993) Environmental Crisis and Development in Nigeria, Inaugural Lecture, University of Port Harcourt, Nigeria. UNDP (2006), Niger Delta Human Development Report, Abuja, Nigeria. World Bank (1995), Defining on Environmental Development Strategy for the Niger Delta, Vol.1. World Commission on Environment and Development (1987), Our Common Future, Oxford University Press, Oxford. Dr. Ibaba S. Ibaba Department of Political Science Niger Delta University, P.M.B. 071 Wilberforce Island Bayelsa State, Nigeria Email; eminoaibaba@yahoo.com Vol. 2, No, 2 2008 87Africana Subverted Institutions and Democratisation: Zimbabwe and the struggle for democracy Kaspar Beech Introduction There have always been democratic institutions in Zimbabwe, and in Rhodesia before that. Yet, for some reason democracy has proven illusive. Why is this? Newspapers and other popular media will profess that this is the fault of President Robert Mugabe (herein referred to as Mugabe). They will assign most, if not all of blame, of Zimbabwe’s problems to the choices Mugabe has made, and the actions he has taken." However as will be shown, the elite make decisions based on choices presented to them. The institutions of government are the structural bases that have shaped the questions and choices presented to Zimbabwe’s leaders. Primary among them are the institutions of parliament and the judiciary. These are key to shaping the path down which a country travels. These institutions are key to determining whether or not that path is one of democratisation toward democracy or not. Democratic institutions in Zimbabwe have been subverted. They were subverted in Rhodesia and they were subverted in Zimbabwe. It is the subversion of key institutions, parliament and the courts, that ' More on this can be found in Guest, R. Zhe Shackled Continent: Africa’s past, present and future; Holland, H. Dinner with Mugabe: the untold story ofa freedom fighter who became a tyrant; Meredith, M. Mugabe: power, plunder and the struggle for Zimbabwe. Meredith, M. The State of Africa: a history of fifty years of independence. Vol. 2, No, 2 2008 83t Africana has primarily led to the failure of democracy in Zimbabwe. This essay will argue that while the role of leadership and elite is important, too little attention has been placed on the role of subverted institutions in Rhodesia and Zimbabwe, in the shaping of Zimbabwe’s democratisation project. To do this I will begin with an outline of the contingency versus structural debate, over which holds more sway in a country’s democratisation. This will lead into analysis of why this debate is fundamentally flawed as it needs a third element: time. It will argue that the role of this contest without considering how that may play out over time is to its detriment. It will then argue that this debate and the literature around it fails to sufficiently analyse the influence subverted institutions have had and the key linkage they have formed between the Rhodesian and Zimbabwean states. I will secondly examine the bifurcated colonial state. I will show hhow there existed two institutional and legal spheres; a directly governed benevolent democratic sphere for ‘civil? Rhodesians, and an indirectly governed despotic authoritarian establishment to maintain control of the ‘subjects’ of Rhodesia. This section will include a description of how the establishment of the bifurcated state included the ordering of black Rhodesians into governable structures. As will be shown this was done by the manufacturing of tribes, history and customs. This is important to understand because Zimbabwean’s tribal affiliation is highly important to them today. These tribal affiliations have also played important roles in Zimbabwe's security situation and the resultant level of democratisation that has or has not occurred. Thirdly the essay will discuss the subversion of the institutions of the civil sphere by the last Rhodesian government. The Ian Smith administration will be shown to actively subvert the power of the judiciary, bypass the constitutional council and pass laws that are anathema to democratic principles. Of these, the Law and Order Vol. 2, No. 2 2008 894Africana (Maintenance) Amendment Act (LOMA) will be considered and the various attempts to achieve new constitutions. The Fourth part will examine the extent of the continued influences and legacies in the new Zimbabwe. This part challenges what is identified as a gap in the literature: the extent of institutional, legal and cultural continuance between Rhodesia and Zimbabwe. It will posit three options as extents to which democratisation could have occurred. It will therefore consider LOMA and its replacement, and the role of the civil services between the two administrations. Finally the last section will consider the institutions of the courts and parliament today. It will find that both are largely dysfunctional shells of their former selves, It will show that this is the case because of a concerted and systematic campaign to subvert them and minimise their ability to challenge the administration. This part will show that Mugabe is not absolved of his actions and his part in the subversion of Zimbabwe's democratic institutions and subsequently, his part in the fateful state of the country. This essay aims to tell a story largely yet untold. This does not seek to find the answer to Zimbabwe's democracy woes. It seeks to show how important the historical subversion of democratic institutions is to the woes currently facing Zimbabwe. Because there is a gap in the literature on this, its argument is implicit in the story it tells. Without a proper understanding of the subversion of democratic institutions in Rhodesia, (which carried through into Zimbabwe), a conclusion on Zimbabwe's ills today would be incomplete. This essay thus attempts to show how institutions of parliament and the courts can be so easily subverted, and can vicariously so easily shape the failure of democracy years and decades jater. This story will take a tour from the construction of the Rhodesian state, through the Jan Smith government, through the transition to Vol. 2, No. 2 2008 90t Africana majority rule, and into Zimbabwe’s present democratic failings. It does so in an attempt to fill this gap in the literature. If, by the end, this gap is filled, a burning question will be answered: to what extent can the subversion of democratic institutions in Rhodesia impede democratisation in Zimbabwe? Democratisation There are essentially four major theoretical frameworks to describe regime transition and democratisation. These can be grouped into two debates. The first debate pits the theoretical framework of underlying structural factors (as the major drivers of political change), against the idea that such change is instead driven by the actions of top political, military and economic elite.''1 It is this debate that holds greatest relevance in this paper and will therefore be the focus of the coming paragraphs. Structural analysis, the first part of this debate, holds that the democratisation (or not) of a country are foundations of the societal construction. As a consequence of this much weight has been placed on the economic situation of the country. Marx, Weber and Durkheim have all pointed out that democracy has consistently gone hand in hand with industrial capitalism". Thus for these, and others, the transition to democracy is a consequence of the transition from an agrarian to an industrial society. Daniel Lerner has ascribed this to the movement of people from their farms in the countryside to more appealing opportunities in industrial centres such as education and healthcare." Huntington has confirmed Lerner’s thesis. “[I]Jn poor ""'M. Bratton and N. Van de Walle, Democratic Experiments in Africa: Regime Transitions in Comparative Perspective (Cambridge University Press, 1997), 19 2D. Lemer, The passing of traditional society (Free Press Glencoe, Ill, 1958) Ibid. Vol. 2, No. 2 2008 otAfricana countries democratization is unlikely, in rich countries it has already occurred “[...] economic obstacles to democratization in sub-Saharan Africa will remain overwhelmingly well into the twenty-first century.” The second half of the first debate stresses the importance of a ‘top- down’ approach — for example the influence of political, military and financial elites — over the course of events. Contingency theory recognises the primacy of agency and the iterative flow on effects brought about by action and reaction.’® A thesis that runs throughout the contingency literature on Africa is the quest for personal enrichment of elites.'? Traditionally, this approach has received significant attention in Africa. The presidentialism established during the Cold War and the deification of the first presidents after independence provided significant empirical example.'® The perceived importance of this agency in relation to a structural approach has been heightened by the media which primarily tracks and reports on the actions and influences of the leader. Rather than focus on the traits, characteristics and history of the state, it focuses on the traits, characteristics and history of the leader. Any glance ata “Ss. P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press, 1993), 60 8 Ybid, 312 ‘6 M. Bratton and N. Van de Walle, Democratic Experiments in Africa: Regime Transitions in Comparative Perspective (Cambridge University Press, 1997), 24 " Wid., 26 18 More on this can be found in Guest, R. The Shackled Continent: Africa’s past, present and future; Holland, H. Dinner with Mugabe: the untold story of a freedom fighter who became @ tyrant; Meredith, M. Mugabe: power, plunder and the struggle for Zimbabwe. Meredith, M. The State of Africa: a history of fifty years of independence. Vol 2, No. 2 2008 92t Africana series of newspaper headlines will show that the majority of the articles are about the leaders or elite.'? A major strength of this contingency approach is that it recognises that much of the outcome of any event will be contingent on how the elite react to an initial situation.°C1 It thus liberates the situation from deterministic certainty. The flaw, of course, is that the reverse is also true. A situation’s outcome can be equally influenced by the reaction of the masses to the elite, not just the other way around. It also means that any outcome is as likely to occur as any other. This is because of the extreme agency that is possible with the non- existence of structural determinism. The other major flaw is that such extreme voluntarism and non-determinism would lead to completely un-patterned and random outcomes. However the truth is that patterns of democratisation can be found?'U An example of this is the waves of independence that washed through Africa beginning in the 1950s and carrying through into the 1990s." The problem with either of these approaches is that singularly, they only make up a part of the whole. Neither theory can adequately explain the complex and dynamic equation of forces that have shaped the events toward democratisation. UGA simply structural approach leaves out the possibility of one, or few, powerful people acting or reacting to a situation, that changes the course of events. The choices made by Prime Minister Ian Smith had serious consequences for the direction the country took. Similarly, the ! The Zimbabwe Situation. www.zimbabwesituation.com . Retrieved 24 September 2008. 20M. Bratton and N, Van de Walle, Democratic Experiments in Africa: Regime Transitions in Comparative Perspective (Cambridge University Press, 1997), 26 2 Thid. 26 2 §. Pp. Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press, 1993) Vol. 2, No, 2 2008 gatAfricana contingency approach leaves out the possibility that leaders merely ride the waves presented to them. They do not themselves make all the decisions that achieve an outcome. Smith could only have the influence he had by being elected to office. He was elected by a wave of sentiment from the societal structure.” Contingency does not adequately account for this possibility. But this whole debate is flawed. It does little to explain the situation over a period of time. The approach examines the relationship between structural influence and elite personal influence in a fixed moment. However the events that decide a country’s present and future occur over a dynamic period that can extend back decades, generations or centuries. Surely the structural establishment of the past will have an impact on the choices leaders are presented with in the present. Similarly the institutions that are created, or subverted today, could have a significant impact on the choices available to leaders in the future. ‘There is therefore established a relationship between democracy and time in Rhodesia and Zimbabwe. In Rhodesia the institutions of the civil sphere were highly democratic while the institutions of the traditional sphere were not at all. The election of Ian Smith in 1965 saw the democracy of the civil sphere worsen and worsen until independence in 1980. Independence then witnessed the entire state’s level of democracy flourish but the institutions of the civil sphere remained subverted and therefore undemocratic. This then persistently deteriorated bringing down the level of democracy for the entire state. In the end both the civil sphere and the aggregate of the state had very low levels of democracy. 3 “Rhodesia was never a democracy although started moving in the right direction in the late 1950s . It went pear shaped when Garfield Todd was booted out as PM of Southem Rhodesia [and replaced by Smith]” David Coltart, “Senator David Coltart Interview,” skype, September 26, 2008, Kaspar Beech Vol. 2, No. 2 2008 Africana The structural approach to democratisation suggests that it is the structures underpinning society that shape the character of events. If one adds to this a dimension of dynamism through time one can begin to appreciate how consequential is the subversion of these structures. By the same logic it is important to realise and understand this subversion of the past in drawing a picture of the present. An institution that has been subverted and is compromised in the past will influence the state in a similarly negative way indefinitely into the future. The reverse is also true. A subverted institution may fail to check the executive therefore positively influencing the course of events by preventing the executive from being destructive. Unless these structures are changed, they will continue to negatively influence, or fail to prevent, a course of events. Changing the institutional structure will therefore be vital to what follows. If these institutions fundamental to government and society are undemocratic they will have that effect on society. If they are democratic but have been subverted then their effect on society will be much the same. In short they will be unable to uphold and serve their democratic functions. So, to understand the current status of Zimbabwe’s democratisation project, one must first understand how the democratic institutions established by the Rhodesians were subverted and compromised. Much of the literature on Zimbabwe focuses on the recent past and the contingency approach: the actions of elites. There is thus a gap in the literature. Institutions, which had been constructed by the British along with the Rhodesian state had a particular function then: to serve either the white minority benevolently, or the black majority despotically. These institutions were thus compromised in their well intentioned role as seen in other countries, where the intention is to serve the entire population benevolently. Vol, 2, No, 2 2008 95Africana Those institutions of the civil sphere, it can be argued, were at their core democratic. Parliament underwent regular, contested free and fair elections. The judiciary was democratic because it was properly independent from the executive.”* In this sense Rhodesian institutions of the civil sphere were democratic. Of course, for this argument to hold true, one must ignore the fact that the majority of Rhodesians could not vote in the regular, contested free and fair elections. Similarly, most Rhodesians could not get representation by the independent judiciary, or were even considered an individual legal entity> However, if one considers the bifurcated state from the perspective of the individuat institutions Rhodesia would appear as two states. One of these states would be democratic and benevolent, the other state would be an ‘authoritarian dictatorship. As such those institutions in the civil sphere can be considered democratic. ICone views the state exogenously one can see that itis clearly not a democracy because the double standard's of bifwreation trump oven. the most benevolently semocratic institorions. Furthermore these institutions were not only compromised from the start, but subverted. As such the benevolent institution’s powers were minimised and the despotic institution’s powers were maximised. Why? Because the conservative Rhodesian elite did not wish for the liberal minded white Rhodesians to use their benevolent institutions in the cause of racial parity or equality and therefore assist ‘the enemy’. And the despotic institutions had to be strengthened so as to attempt to maintain control over an increasingly restless and assertive black majority. % §. Mozaffar, “Patterns of Electoral Govemance in Africa's Emerging Democracies,” International Political Science Review/ Revue internationale de science politique 23, no. 1 (2002): 98 5 Mamdani, M. (1996) Citizen and Subject: contemporary Africa and the legacy of late colonialism. p. 18-19. Vol. 2, No. 2 2008 96+ Africana Other literature fails to analyse the key linkage between the last Rhodesian government of Prime Minister Jan Smith, and the Zimbabwean governments of Robert Mugabe. Much of the literature on Zimbabwe is divided between the eras before and after independence. But this is problematic. While a new government took over the reigns in April 19800 the functions, institutions, cultures — the general machinations of government — continued fluidly between the two eras. This change to independence happened in a legal capacity rather than in a functional day to day sense. The colonial governmental institutions remained in place. As will be shown, these institutions were highly flawed and compromised. Well entrenched in the ‘new and independent’ Zimbabwe were institutions that were subverted and therefore democratically flawed. As such there was very little ‘new’ about the ‘new and independent’ Zimbabwe, A more accurate representation would go no further than a new set of personnel in an old set of practices, systems and institutions. The Bifurcated State An examination of the roots of Zimbabwe’s democratic institutions, split between civil and traditional spheres in a bifurcated state, can shed significant light on the hurdles democratisation must overcome to be successful. These were established under colonial rule over a period of roughly 100 years. Importantly, many of these institutions were not established fo serve the majority of the population. They were established to provide a distinct legal and institutional space in which white Rhodesians could live. Other institutions were established with the sole purpose of presiding over the vast majority of black Rhodesians. These institutions were not benign in any respect. Their sole purpose was to rule in a dictatorial fashion over the black Rhodesian population and keep them quiet and out of sight unless their labour was required for agriculture, industry and menial services. Vol. 2, No. 2 2008 onAfricana The result of these two spheres of public institutional and legal establishment was a bifurcated state. The bifurcation was between those that were then deemed ‘civilised’ and those that were ‘subjects’ of their chiefs, employers or rulers. It took many years for laws to pass which created distinct physical public space for black and white Rhodesians. However in practice this was always the case. The simplest divide was between rural and urban Rhodesia. Urban Rhodesia was for white Rhodesians who enjoyed the benevolence of the civil government and institutions. Rural Rhodesia was for black Rhodesians who were subjected to the despotism of their designated institutions.°0 Obviously this excluded white Rhodesians who farmed and black Rhodesians who worked in the cities. As will be discussed later a law did come into effect banning all family or friends (unemployed) from ‘loitering’ in the white areas where their associates worked.” Barring these two groups the political, institutional and legal spheres of state largely matched the physical territorial bifurcation. This created the bifurcated state. Much of what Zimbabwe's institutions are now built on comes from this distinction.*O Understanding this divided state apparatus answers many of the questions around why the liberation war began and for what it was fought. To truly understand this one must start at the beginning of Europe’s major colonial push in Africa. Prior to the abolition of the trans-Atlantic slave trade the industries of the British and other European empires were fed by the forced labour of Africans. The industrial response to this trade’s abolition was to take the industry to the slaves, rather than the slaves to the industry. Thus what is today commonly referred to as the scramble 26 Tyid., 22-27 2? The African (Urban Areas) Accommodation and Registration Act (1946) cleared white areas of Africans not themselves domestic servants. 3 M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism Princeton University Press, 1996), 25 Vol. 2, No, 2 2008 ggt Africana for Africa began, To maximise their wealth, influence and industry European empires rushed to establish control over as many territories as they could. This new kind of colonisation demanded proper and full control of entire territories with European powers as owners, not guests or customers of the African slave exporter. However, for this to work, there was one major problem that needed to be overcome for proper control and efficient extraction of wealth: the native problem. How could a tiny minority who knew little about surviving in these alien conditions rule over a majority native population? Over a period of decades two forms of control emerged: direct and indirect rule; or, in other terms: centralised or decentralised despotism.” Direct rule was a means to gaining civil control and the continued exclusion of the uncivilised from the rights of citizens. All native authorities and institutions had to be abolished, placing both Europeans and Africans under a single law and authority. While both Europeans and Africans had to comply with these laws only citizens, or civilised people (Europeans), were granted the accompanying rights." However a report of 1846 on how best to govern the natives of the Natal Colony” strongly recommended establishing native areas where the people would be governed as much as possible by a customary justice so long as it was not “repugnant to the general principles of humanity, recognised throughout the civilised world”. To this end a distinct territorial, institutional and legal space was ? Tid, p. 37-8. ® Ibid. p. 37-8. 31 bid. p. 16 ® Now a part of South Africa ® Mamdani, M. (1996) Citizen and Subject: contemporary Africa and the legacy of late colonialism, 63. Vol. 2, No. 2 2008 991Africana created over which the state would govern an ostensibly “free” peasantry by a mix of customary and received law to be implemented. by the chief and whatever customary means he had for power dissemination.** The subsequent contrasts in the experience of the Natal Authorities and those of The Cape demonstrated the efficacy of indirect rule. While the Cape authorities had been trying to crush and scatter tribes in an effort to break resistance to colonial rule, the Natal authorities had never gone to war with their natives’ In British Nigeria a mere 1,315 colonial officials were expected to, and later did, effectively rule over an overwhelming 20,000,000 Africans.*® Thus Indirect Rule became the modus operandi for, especially British, colonial authorities. The bifurcated state that resulted was essentially two distinct forms of governance run by the same government, For a privileged few the state was a benevolent democracy while for others, it was a brutal dictatorship which ruled via a network of puppet chiefs. To do this, it created a distinct legal, territorial and institutional duality under a single hegemonic authority between the natives on the one side, who lived by the codes of ‘community’ and ‘culture’, and the ‘civilised’, who lived by the codes of ‘civilisation’, civil rights and civil society, on the other. “Civil power claimed to protect rights, customary power pledged to enforce tradition. The former was organised on the principle of differentiation to check the concentration of power, the latter around the principle of fusion to ensure a unitary authority. a7 However a problem emerged when this style of governance was applied to Rhodesia. It was discovered that the native populations did 4 Ranger, T. (1985) The Invention of Tribalism in Zimbabwe. p. 17. 35 Mamdani, M. (1996) Citizen and Subject: contemporary Africa and the legacy of late colonialism. p. 67-8 3 Ibid. p. 73 "Tid. p. 18. Vol. 2, No, 2 2008 100+ Africana not exist in tribes as they had elsewhere, and that there was no singular customary law or system of governance that could easily be applied to disparate groups. Establishing the colonial state apparatus among natives was easiest done when there existed a prior apparatus. Would it really be possible to build a system applicable to indirect rule where non had existed before? Despite what one may think, the colonial project was successful in inventing tribes and manufacturing tribal history, culture and customs. To understand this one must first understand the history and makeup of society when the British arrived. Then one will see how the tribes, history and customs were invented. The Invention of Zimbabwe: Tribe, History and Custom, The origin of Zimbabwe’s tribalism is important for two reasons. First it is fundamental to the tribal affiliations of Zimbabwe today and the consequent political affiliations. Secondly, it is important because this tribalism has resulted in significant security matters in Zimbabwe which has in tum allowed the executive to withhold democratising advances such as the repeal of state of emergency laws. Thirdly it is important in understanding the bifurcated state, and why it was successful. ‘Tribal affiliations, primarily between the Ndebele and the Shona have often divided Zimbabwe. This split has seen itself emerge in numerous settings. It appeared in the liberation struggle between the rebel movements ZANU and ZAPU.OO They recruited their ranks predominantly from the Shona and Ndebele respectively.” In the aftermath of independence this manifested itself into political parties of the same names.(/"°O It has also manifested itself geographically with the Ndebele predominantly inhabiting Matabeleland (South % Martin Meredith, The State of Africa: A History of Fifty Years of Independence (London: Free Press, 2005), 131 » Ibid. 70 Vol, 2, No, 2 2008 101+Africana West Zimbabwe) and the Shona inhabiting Mashonaland (Central, North and East).°0) This difference came to a head between 1980 and 1988 when the government, headed by Mugabe (Shona) and ZANU (Shona) launched a campaign of genocide in Matabeleland which is estimated to have had a toll of over 20,000 lives.’ “The motive for these killings was to crush the people of Matabeleland Gso that they would conform to the ZANU-PF Government and give up their tribal identity and their attachment to ZAPU. But to understand the bifurcated state and how it was successful in Zimbabwe one must go into greater depth. Grasping first the crucial significance of this bifurcation of the state will aid the objective of transcending it as a prerequisite to democratisation in Zimbabwe. Additionally, understanding that the bifurcated state exists is important to transcending it in an effort toward democratisation. Let us therefore start from the beginning. ‘Today in Zimbabwe there are two main tribes, the Ndebele and the Shona, as well as a handful of smaller and sub-tribes: the Korekore, Zezuru, Manyika, Karanga and Kalanga. However this was not always the case, identification with such tribes is a relatively recent phenomenon made real over a period of colonial rule.” The Ndebele State was founded by King Mzilikazi circa 1821 CE“ when he left Zululand with around 500 subjects. These subjects did not see themselves as ‘Ndebele’ but as subjects of particular chiefs who were Tid, 70 “ Catholic Commission for Justice and Peace in Zimbabwe and Legal Resources Foundation (Zimbabwe, Gukurahundi in Zimbabwe: A Report on the Disturbances in Matabeleland and the Midlands 1980/1988, (Columbia University Press, 2008), xi ® Tid, xi Ranger, T. (1985) The Invention of Tribalism in Zimbabwe. p. 4. “ Common Era (CE) refers to the period post year 0. BCE refers to years before that. Vol. 2, No. 2 2008 1024 Africana aligned within the Ndebele state.*“° They were effective and efficient fighters who migrated for decades farming cattle and incorporating conquered peoples along the way.*” On the other hand, the ancestry of those who today describe themselves as ‘Shona’ were successive and simultaneous state societies that built numerous empires over a massive period of time, the most successful of which was Great Zimbabwe (1250-1550 CE). The last of these empires was the Rozvi state which was a loose confederation of tribute paying chieftanships. King Mzilikazi and the members of the Ndebele state destroyed this when they settled in what is today South-West Zimbabwe, or Matabeleland.”* Many historical texts and popular references cite these groupings as being immemorial and homogeneous tribes, they were not. A tribe is a group of people who share a common ancestry culture, religion and Janguage and are ruled by a hereditary chief in a well defined geographical area.” Thus to speak of ‘a Shona’ identity, history, culture and traditions as though it were timeless and true is erroneous. Prior to 1890 People defined themselves politically as subjects of a particular chief. As such, terms such as Korekore, Zezuru, Karanga and Kalanga did not signify ethnic or tribal identity “5 Ranger, T. (1985) The Invention of Tribalism in Zimbabwe. p. 4. “The Ndebele state was mach more centralised (Appiah & Gates Ir (1999): p. 2049) and is therefore more easily confused as a tribe, or race. However it was far from it, consisting of numerous ethnicities, heritages and ancestries who were assimilated into the Ndebele state for political and survival reasons. The Ndebele state was itself destroyed after 1893 and 1896 leaving its constituent’s identities very much in question,(Ranger (1984): p4-5:.) Rasmussen, R, (1979) Historical Dictionary of Rhodesia/Zimbabwe. p. 220-1, ® Appiah, H. & Gates Jn, H. (1999) Africana: the encyclopedia of the African and African-American experience, p. 2049 Tid. p. 703 Vol. 2, No. 2 2008 1034Africana and sentiment then as they do today, but were instead nicknames, labels, chieftancies or historical accidents or misunderstandings. Korekore meant “northener”, Zezuru meant “highlander”, Manyika were those under the paramountcy of Chief Mutasa. Karanga was the term the Portuguese used to describe the ruling lineages of the northern and eastern Shona-speakers which was then picked up by the British and applied to the first Shona speakers they came across. Today, these labels are used to name tribes, each with an identity, language, culture, history and custom. But how, you may ask, and why, did this come about? The answer is to be found in the European mindset of the time. European preconceptions of African life and government rarely matched reality. The British arrived in Africa with a preconceived understanding of a monarchical, patriarchal and authoritarian world in which “every African belonged to a tribe, just as every European belonged to a nation”.”' Thus, they presumed polities ruled by a king, administrative areas ruled by a chief and homes and kraals ruled by a patriarch.” This preconception blinded them from accurately perceiving the complex tension of power distribution between male and female,” and in some cases extensive checks and balances to power which pitted gender and hierarchy against each other to maintain a balance. Expecting to find an authoritarian monarchy and patriarchy, Native Commissioner Stuart, of Malema District, Rhodesia, was shocked to find ‘a state of anarchy[...]’ where ‘deference is shown by anyone to anyone’ and where ‘a girl may * Ranger, T. (1985) The Invention of Tribalism in Zimbabwe. 5! Mamdani, M. (1996) Citizen and Subject: contemporary ifrica and the legacy of late colonialism. p. 81 2 Tid. p. 39 ® Amudiame, I. (1995) Gender, Political Systems and Social Movements: A West African Experience. Ibid. p. 40-1 * Ibid. p. 45-6 Vol. 2, No. 2 2008 1044 Africana choose, whom she likes, whenever she likes and as often as she likes’. Colonialism’s answer was to create the tribe and impose customs, traditions and characteristics they had assumed but not found. In the case of the Ndebele Native Commissioner Stuart was determined to reform the “infinitely inferior” anarchist Ndebele to regain the perceived qualities of the perceived Zulu tribe, from which he believed they had sprung. He thus set about teaching “the Ndebele how to be Ndebele” by “enforcing ‘Zulu’ laws”.** To do this he sat with senior Ndebele chiefs and, based on the Natal Code of 1891, composed a Native Code of Law which granted broad powers to the chiefs. In his closing report Stuart said what he had done “would be of extreme use in the resuscitation of what, now, cannot be otherwise described as a nation more or less without customs”.*” However he was mistaken in his thinking as, “there was no ‘Zulu’ language nor ‘Zulu’ nation until for purposes of convenience the early European settlers in South Africa applied that term to the people living in a country which was erroneously named ‘Zululand’”.** Thus, the Ndebele “tribe” was created out of the Ndebele state based on Zulu laws and customs which were themselves colonial inventions. Despite what one may think, such a situation did take hold and before long what had been the invention based on an invention became a historical and cultural fact. There are three reasons why what was fake became real. Firstly the newly empowered chiefs thoroughly agreed with an official version of their ‘tribal’ characteristics which put them atop a power structure that was monarchical, patriarchal and authoritarian. Overnight, they became % Ranger, T. (1985) The Invention of Tribalism in Zimbabwe. p. 8. % bid. p. 8. 57 Stuart, in Ibid. p. 9. ® Author unknown, In ‘Ndebele History’ in Ibid. p.7. Vol. 2, No, 2 2008 1054Africana the military, authoritarian elite who ruled over vastly greater numbers of people and cattle than ever before. They were given powers to pass by-laws, enforce laws, arbitrate disputes, collect taxes and generally administer their area. In this way the chief became the executive, judiciary, legislature and administration with no checks on his power bar an obligation to answer to the native commissioner.*? Secondly ‘tribal’ characteristics were enforced by employers (colonials). They believed ‘tribal characteristics’ extended to natural affinities for certain services. Thus, Manyika were hired for domestic services such as cooking and cleaning, and Ndebele were only hired for jobs not deemed too menial or degrading for them, unlike Shona “tribes people’. Wages matched these positions and unsurprisingly the number of people claiming to be Ndebele, or Manyika, or whatever else was attracting the highest wages and best jobs, increased dramatically. In this way the relatively small Ndebele state grew into a massive Ndebele ‘tribe’ many of whose members had had no prior connection to the state. Lastly tribal identity was forged by way of language codification and missionary education. Any Shona speaker, for example, was able to communicate happily with all immediate neighbours. S/he would not, however, be able to understand a fellow Shona speaker on the opposite extremity of the linguistic boundary. As such the lingual difference morphed as a continuum. Missionaries, in their efforts to ‘civilise’ native Africans established spheres of influence over the subjects of different chiefs. They then took the mean of the lingual continuum used by those under their influence and codified it. The result was the evolution of distinct differences between different @ Ranger, T. (1985) The Invention of Tribalism in Zimbabwe. p. 9-10. Ibid. p. 11. © Where avoiding gender description is not easily done I will use both ‘she’ and ‘he’ together to form ‘s/he’. Vol. 2, No. 2 2008 106" Africana missionary regions- something that amalgamated diverse chieftaincies into one dialect or language. Using these ‘tribal’ dialects they then wrote the ‘tribal history’, described the ‘tribal culture’, and the ‘tribal characteristics’ and then taught this in their missionary schools. However a new generation noticed how these differences were impeding trans-Shona communication. Thus the next wave of linguist/history entrepreneurs created a standardised Shona. This, in the same pattern as earlier, then evolved into a standardised Shona ‘history’ and ‘culture’ and ‘identity’. In this way a tribe and numerous sub-tribes were manufactured. Having invented tribes and established chiefs as unchecked rulers over diverse peoples the colonial state could now impose its will universally by indirect rule. The system of governance, of mediated and decentralised despotism, employed the newly founded tribal hierarchy to suppress the native population. Thus, a distinct physical, institutional and legal space was created under the constructed ‘customary’ governance apparatuses. Herein the ‘tribe’ governed communal areas and all facets of their subject’s non-market relations (when they were not at work) with a combination of ‘customary’ and received law, answering only to the native commissioner of the area.” Each ‘tribe’ constituted one legal entity, whose individuals were not recognised by law. Chiefs governed by state enforced ‘customary’ authority and law that differed from tribe to tribe. Members of a tribe had to please the chief's every whim or face his wrath. Chiefs were themselves rewarded for instilling obedience in their subjects with ever more subjects and ever greater territories. © Ranger, T. (1985) The Invention of Tribalism in Zimbabwe. p. 14-16. Mamdani, M. (1996) p. 17. Tid. p. 18-19. Ibid. p. 51-54. Vol. 2, No. 2 2008 1074