Courts and Democracy in Postconflict Transitions: A Social Scientist’s Perspective on the African Case

Abstract

A “second liberation” swept the African continent beginning in 1989. In many places, multiparty elections and a measured optimism gained ground. Yet during the 1990s, the spirit of moderation and tolerance typical of the early independence movements began to fray. The recent armed conflicts of Central and West Africa and the columns of refugees crossing borders have served as a blunt reminder of the fragility of many of the continent’s democratic experiments. In this new era, law plays a central, visible, yet delicate role in many peace settlements and democratic transitions, from South Africa to Ghana. Africa’s courts have been challenged to provide the kinds of basic dispute resolution that lie at the core of what it means to be a “government.” At the same time, Africanjudges are mindful of Learned Hand’s caution in The Spirit of Liberty, taped above a secretary’s desk in Uganda. “Liberty lies in the hearts of men and women,” Hand wrote. “[W]hen it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” The success of a postconflict transition will depend, in part, on the role of courts in sustaining a spirit of liberty and tolerance in their societies.

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