About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

5 Afr. J. Legal Stud. 21 (2012)
Post-Colonial Public Law: Are Current Legal Establishments Democratically Illegitimate?

handle is hein.journals/ajls5 and id is 25 raw text is: APRICAN
MARTINUS                                                                      JOURNAL
OF LESAI.
NIJHOFF                                                                       STUDIES
P U B L I S H E R s   African journal ofLegal Studies 5 (2012) 21-43          brillil/ajls
Post-Colonial Public Law: Are Current Legal
Establishments Democratically Illegitimate?
Jean-Paul Gagnon
Centre for Greater China Studies, Hong Kong Institute of Education,
New Territories, Hong Kong
Abstract
The extant literature covering indigenous peoples resident on the African continent targets colonial law
as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued by a wide body of
literature to be archaic and in need of review, this article takes a different route and argues the perqpective
that colonial law is democratically illegitimate for ordering the population it presides over - specifically
in Africa. It is seen, in five case studies, that post-colonial public law structures have not considered the
legitimacy of colonial law and have rather modified a variety of constitutional statutes as country contexts
dictated. However, the modified statutes are based on an alien theoretical legality, something laden with
connotations that hark to older and backward times. It is ultimately argued that the legal structures which
underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical
legality, rather than imperialistic European ones, so as to maximise the law's democratic legitimacy for
both indigenous and non-indigenous Africans.
Keywords
Africa; colonial law; legitimacy; legal theory; democracy
1. Introduction
The legal remnants of colonial public law in African polities are problematic for
several reasons. In the first, colonial theory in law is laden with inappropriate con-
notations and sociological paradigms which continue to negatively affect the plu-
ralist citizenry's capacity for equality, representation, and indigenous rights. This
*) Dr. Jean-Paul Gagnon is a social and political philosopher specializing in democratic theory. He also
edits the Journal ofDemocratic Theory. Recent publications include 'The Taliban did not create the Tali-
ban, Imperialism did'journalofSouth Asian Development, 2012; and 'Huron Socialism: A New Political
System' AlerNative:An International journal ofIndigenous People 7(4), 2012. The author would like to
thank Professor John Keane, Professor Shiu-Hing Lo, Professor John Dryzek, Professor David Cameron,
Professor Emeritus Edward Andrew, Professor Ramin Jahanbegloo, Professor Clive Bean, Professor
Gavin Kendall, Dr. Nicholas Osbaldiston, Theresa Sauter, Christian Callisen, Gino Orticio, Geraldine
Donaghue, Dr. Matthew Ball, and Lanka Butler-Da Silva. It is also important to recognize several other
members in the Department of Political Science and the Munk School of Global Affairs at the University
of Toronto. I would also specifically like to thank the Hong Kong Institute of Education's Centre for
Greater China Studies. Without these individuals and institutions, this article would not have been made
possible.

@ Koninklijke Brill NV, Leiden, 2012

DOI: 10. 1163/170873812X626081

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most