Rule of Law, State Capture, and Human Development in Africa

By Mbaku, John Mukum | American University International Law Review, August 10, 2018 | Go to article overview

Rule of Law, State Capture, and Human Development in Africa


Mbaku, John Mukum, American University International Law Review


I.GENERAL INTRODUCTION

State capture involves the appropriation of state institutions, organs, and functions by individuals or groups. By doing so, these individuals and groups can have control over or influence the design and adoption of new laws, rules, and regulations, as well as the amendment or modification of existing ones.1 Ivor Chipkin2 argues that state capture occurs when "state institutions, potentially including the executive, state ministries, agencies, the judiciary and the legislature, regulate their business to favor private interests."3

It has been argued that state capture is a "severe form of corruption."4 Historically, corruption has been defined to include the subversion of existing rules by civil servants and political elites to generate extra-legal income for themselves.5 State capture, however, implicates the taking over of "rule-making" and "rule-interpreting" processes by private interests.6 Studies of state capture can help us understand and more effectively appreciate the extent to which "firms, and the networks which control them, have acquired the ability to 'shape the laws, policies and regulations ... to their own advantage by providing illicit private gains to officials.'"7

Once private interests capture it, the state ceases to operate in the interest of the people. It functions and carries out its duties almost8 exclusively to maximize the interests of the private parties or agents that have captured it. Why should citizens of a country be concerned with state capture? In addition to abandoning its traditional functions, which include providing necessary public goods and services (e.g., security of the person and property of the individual) to all citizens, there may be a significant increase in government impunity, which may include increased abuse of the fundamental rights of citizens, especially those of historically marginalized and deprived individuals and groups (e.g., women, girls, and religious and ethnic minorities), increasing levels of corruption, especially of the grand type, significant reductions in openness and transparency in government communications, a deterioration in economic competitiveness as well as in rule of law institutions (e.g., the courts), and a general failure of the state to engage in necessary reforms to improve the country's institutional arrangements. Perhaps, more important, is the fact that the state would no longer be interested in promoting those activities, such as investment in formal and informal training for workers, that can significantly improve the people's ability to engage in activities (e.g., entrepreneurship and the creation of wealth) that can greatly enhance human development.9

In this paper, we will examine state capture with specific reference to African countries. In Section II, we will revisit the definition of state capture and provide a much more robust examination of the concept and show how it differs from corruption. In Section III, we explore state capture in Africa by drawing from the experiences of a few countries. In Section IV, we explore the relationship between state capture and the rule of law and how the former can significantly impact the latter. In Section V, we examine the impact of state capture on economic development. In Section VI, which is the concluding section, we provide policy recommendations, and, in doing so, we examine ways in which African countries can structure their governing processes to minimize state capture and its deleterious effects on governance generally and human development in particular.

II.STATE CAPTURE AND CORRUPTION: A GENERAL OVERVIEW

In the last several years, legal scholars,10 political scientists,11 and economists, have recognized the fact that "corruption is fundamentally a problem of governance."12 Corruption is usually pervasive in countries where civil servants and political elites are not adequately constrained by the law and the state is either too weak or unwilling to fully and effectively oversee the activities of public employees. …

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