Because laws often reflect the power dynamics of the past they need to be analysed and re-shaped on a regular basis to ensure relevance in a rapidly-changing world.
New laws should also incorporate the interests and aspirations of local people rather than perpetuating anachronisms and disparities from the past, Professor Arewa suggests in her new book reflecting on the development of law in Africa.
“I’m not suggesting that we need to reinvent the wheel,” she states, but leaders and lawmakers need to think more strategically about how Africa can benefit best in the era of globalisation and the digital revolution.
“Like it or not, the digital era is here . . . so how do we engage with it for maximum benefit? How do we deal with the labour implications of automation?” she asks, noting that Africa has the youngest and fastest growing population in the world.
By 2050, Nigeria’s population is forecast to double to around 400m people, overtaking the United States as the world’s third most populous country.
“We are looking at potentially dire outcomes in many African countries. This cries out for a new path in governance and law-making,” says Arewa, who is the Shusterman Professor of Business and Transactional Law at Temple University (Beasley School of Law) in Philadelphia.
Her new book, Disrupting Africa: Technology, Law and Development, is based on decades of archival research which led her into a “deeper universe while trying to solve the puzzle of how a body of law comes into being”.
Arewa’s fascination with this issue stems partly from the fact that her Nigerian-born father emigrated to the United States in the 1960s, while her mother’s family were descendants of the transatlantic slave trade.
She finds a pattern where the influence of “imported laws” remains pervasive in many African nations. One example was Nigeria’s Company and Allied Matters Act (1968) which was largely a copy and paste version of English law until it was amended extensively last year.
“It was not very friendly to small and medium enterprises as colonial interests found it more expedient to promote the interests of large-scale enterprises.”
Such laws, developed elsewhere to reflect and accommodate very different interest groups, also stipulate the need for regular audits and other onerous requirements that make it difficult to start and expand small businesses.
Trademark legislation and other laws borrowed from the United Kingdom also lived on in Nigeria, Kenya and Eswatini for several decades after being repealed or amended in the UK. There were many similar examples across Africa of this failure to update borrowed colonial laws.
Changing this pattern is even more critical in the era of digital and technological disruption, she believes, noting that there is a tendency to celebrate “disruption” uncritically.
“Disruption can be positive and negative as there are often winners and losers. My book encourages us to look at this in a broader context where existing problems can be intensified.”
This should include disrupting copy-and-paste laws often shaped by external actors to focus on resource extraction.
“It’s not necessary to agree with me. I try not to say there is only one solution. I think it will require some conscious experiments. The window of opportunity is very narrow, and the path has to be trodden carefully . . . I just want people to start thinking more about possible strategies.”
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