We think, with due respect, that Seidman has overlooked one important
fact. Here, he ought to have addressed his mind to a simple question.
That is, whether in reality a political elite (which benefits from
existing legal order) can truly have an ideology for change. The
simple truth is that such elites who are in position of authority
always want to maintain the status quo. Such group of people do not
welcome change in the first place let alone initiate one. The central
bureaucracy, for instance, is a definite class with definite interest
and as such always a s p i r i n g to p r o t e c t those interests a n d to
consolidate their powerful position.
Seidman's "law of non-transferability of law" is another issue we
must comment on. We share his views that legal transplants, not only
in Africa, but also in other parts of the world practically never
worked.80 The non-legal factors which he enumerated as directly or
indirectly serving as constraints to legal transplants are also, to
our mind, quite accurate. However, we would want to observe that
apart from custom, history, geography and technology, language is
another non-legal factor which serves as a major obstacle to effective
communication and reception of the English common law in many parts of
Africa. Apart from the basic fact that law can only be effective if
communicated, the level of literacy in the society determines, to a
large extent, how the law is appreciated and conformed with. Not only
Africa, but even the m o d e r n technological society depends on a
sufficiency of literate and numerate people to run it, or even to
respond to its road signs. It is therefore clear that knowledge of,
and responsiveness to, any rule of law depends very much on the
the law is written. The failure of most of the legal rules in the
Third World to induce development is therefore, due in part to the
fact that they were written in a language which is foreign to the
African soil and which is understood and spoken by a minority of the
African population. Take the courts, for instance, where the use of
i n t e r preters in c o u r t and tribunal p r o c e e d i n g s in the A f r i c a n
countries has led to misrepresentation of facts, confusion and in some
cases outright miscarriage of justice. It may be relevant to mention
here that the author of this thesis had the personal experience of
s e r v i n g as a m a g i s t r a t e in N i g e r i a , and, w i t h the b e n e f i t of
hindsight, wonders how a customary court, for instance, can rightly
claim to be customary, if apart from anything else, the English
language is its mode of expression.
In Africa, Tanzania provides a good example of a Third World
country where much has been achieved through the use of an indigenous
African language (Swahili) in the dissemination of official government
policies and information.81 Elsewhere in Africa, English remains the
only official language and statutes, regulations and law reports
appear in English. It is however, important to observe that the use
of Swahili in Tanzania was largely due to the fact that nearly
everyone in that country understands and speaks that language. This
made it easier for Swahili to become the second official language.
This arrangement would be impossible in a country like Nigeria with
its diverse tribal groupings and several native languages.
Language barriers aside, one major factor which prevented law
from inducing development, in our opinion, is the poor publicity given
to all legislations, subsidiary regulations, government gazettes and
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facilities for publicity are so inadequate that they hardly provide
the desired communication channel between the centre and the periphery
in those countries. In Africa, for instance, the majority of the
population are found in the countryside but ironically mass media
scarcely penetrate the African countryside. It was discovered in
Buhaya, Tanzania, in the mid-1960's for example, that only 8.5 percent
of the population owned a radio,82 and one-third had never even heard
one.
Hie Opposite View
We may now examine the work of Bruno-Otto Bryde.85 Quite unlike
Seidman, Bryde holds the opinion that irrespective of whether a legal
order is authoritarian or participatory, it is incapable of inducing
development. In his work, he seeks to find out whether we can expect
governments in A f r i c a to enact laws that are desi g n e d to bring
fundamental change in their societies.84 This, he thinks, depends, to
a large extent, on the power and motivation of governments. Also he
holds the view that this power is conditioned by external constraints.
The motivation will depend on the existence or absence of a conflict
between d e v e l o p m e n t goals and the i n t e r e s t s of those el i t e s in
power.85 In A f r i c a n countries, as in m a n y parts of the world,
political and economic powers are held by a small group of people who
constitute the elite. These people in authority resist change. Bryde
believes that the law-makers who may intend to effect change in the
legal order must expect opposition from the elites of w h i c h the
law-makers are themselves a part. Hie law-makers here are invariably
the members of the legislature, the judges, the academic lawyers, the
bureaucrats and the politicians - these form the "cream" of the
society.
Bryde conceives of development as economic growth, egalitarianism,
democracy and autonomy.88 His description of power structures in
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Africa is that which consists of three main strata. First there is
what he calls the stratum of the strategic elite at the top. This is
the group w i t h the highest and the most powerful political and
economic power base. Secondly, there is the middle stratum whose
social and economic boundaries with the upper stratum are rather
fluid. Prominent among the members of this group are the top civil
servants and chief executives of the public sector. Then at the
bottom of the ladder there is the wage labourer and the peasant
stratum with virtually no social status. They wield no economic or
p o l i t i c a l p o w e r a n d y e t t h e y c o n s t i t u t e t h e m a j o r i t y of the
population. These are the poor87 ordinary peasants most of whom are
law abiding citizens. This power structure of African states serves
as major impediment to development. It is inconceivable to use law in
such a situation for the purposes of inducing development. This is
simply because any legal rule that threatens the status quo or any
policy that tends to change the position of the privileged elites will
not be initiated. Bryde thinks that even if such rules are made they