African judges, in their own cause: Reconstituting independent courts in contemporary Africa (original) (raw)
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International and Comparative Law Review
Summary The contemporary legal landscape in Southern Africa and its responsiveness to the challenges in the region can be explained in many ways. Part of the explanation has been the idea of legal transplants—which entails borrowing and adapting legal norms, and structures from different legal systems in order to resolve legal problems in the region. The end of apartheid and other rapid changes in the region—political, racial, economic and social—has directly placed the courts on the frontlines of human rights protection especially on socio-economic rights and other overarching concerns of law reform. The adoption of constitutional courts in some of the countries, and consequent judicial activist turn in the jurisprudence of courts in the region generally; has inserted the courts into the mainstream of policy deliberations. Thus, this paper claims that legal transplant per se does not explain the full reality of what is going on in the region—in terms of nomativization, transmission...
2018
Similarly, to most of their counterparts in Africa, South Africa and Kenya have a history of disrespecting constitutionalism by flouting their constitutions. This occurs despite the good intentions to preserve judicial independence, the rule of law, democracy and constitutionalism displayed by these countries by enshrining these values in their constitutions. The guarantee of judicial independence by the constitution is essential for an impartial judge to preside without bias or favor over matters that involve the violation of the constitution by the executive, the legislature and even the judiciary itself. It is the enshrining of the independence of the judiciary that enables the Kenyan and South African courts respectively to deliver judgements that have declared unconstitutional and invalid the election of a sitting president during a presidential election in Kenya, declaring the conduct of the president and the legislature unconstitutional and invalid in South Africa and forcing these institutions to comply with the constitution. While both Kenya and South Africa can learn from each other with respect to the preservation of constitutionalism, it is more important that the democracies in the world should learn from these democracies which have taken giant steps in protecting judicial independence and, ultimately, preserving constitutionalism.
Is the Constitutional Court of South Africa snubbing the African Court on Human and Peoples’ Rights? The two courts appear to be natural allies, having both elaborated a robust jurisprudence promoting civil-political and socio-economic rights, accountability, political participation, and good governance. However, despite the African Court having issued a raft of landmark merits judgments since June 2013, the South African Constitutional Court has yet to cite its jurisprudence. This paper attempts to account for this apparent lacuna in South African case-law, placing it against the Constitutional Court’s overall approach to citing international law and courts, and arguing that it cannot be simply explained by the fact that South Africa has yet to make the special declaration required to permit individual and NGO petitions to the African Court, or that the African Court has not issued any judgment regarding South Africa. Rather, a range of other possible explanatory factors appear to be at play, including: the State’s position as a ‘reluctant regionalist’; institutional factors (primarily, the Constitutional Court’s possible preference to retain constitutional supremacy and adjudicative autonomy, and the African Court’s youth); and broader structural factors (such as a lack of citations in submissions to the Court and a civil society view of the African Court as an alien entity). The paper’s main claim is that this matters for two reasons: first, it deprives South African jurisprudence of sources that could enrich it and anchor it in the developing regional human rights system; and second, because the South African Constitutional Court is in a uniquely influential position to support the development of the African Court as a key site for the elaboration of a transregional community centred on the African Charter of Human and Peoples’ Rights; by far the most widely ratified rights treaty in the African Union.
Some Perspectives on the Prospects for Judicial Independence in POST-1990 African Constitutions
The Denning Law Journal, 2012
Constitutional reforms have dominated all political discourse in Africa since the current transition from authoritarian to democratic rule started in the early 1990s. This so-called "third wave" 1 of democratisation has provoked African politicians and their constitutional engineers to design and introduce new or substantially modified constitutions. In spite of this frantic remodelling of constitutions, Africa's record on constitutionalism has not been a particularly good one. Most post-independence constitutions were quickly abrogated or easily subverted, suspended or brazenly ignored at the whims of African leaders. The new post 1990 constitutions appear to be an attempt not only to
Who are Judicial Decisions Meant For? The ʽGlobal Community of Lawʼ in Southern Africa
International Political Science Review, 2018
Rationalist models of judicial decision-making expect courts to defend their institutional integrity in politically sensitive cases. This article presents two African case studies of courts not doing so. They have elicited predictable backlash from executives and placed their institutions in avoidable danger. I argue that judges' desire for esteem from emerging global judicial networks can explain this otherwise puzzling behaviour. These new networks become particularly salient in human rights cases. This conclusion partially supports Anne-Marie Slaughter's controversial claims about the significance of 'the global community of law' but also identifies risks this poses for courts' domestic authority. The argument is made with reference to two recent and well-known decisions by the High Court of Botswana and Southern African Development Community Tribunal. The first case, Sesana (2006), dealt with the vexed question of indigenous rights in Africa. The second case, Campbell (2008), concerned the compensation of expropriated commercial farmers from Zimbabwe.
Cultivating a Seedling Charter: South Africa's Court Grows Its Constitution
Mich. J. Race & L., 1997
emerges from the vestiges of apartheid, its Constitutional Court struggles to develop a jurisprudence that reflects the lasting ideals of a constitutional democracy. This Article examines the Court's use of international and foreign law in developing a unique form of constitutional jurisprudence. It argues that the Constitutional Court is in the process of developing an innovative form of decision-making that effectively combines domestically derived principles of justice with those developed in the international forum. This Article concludes that reliable methods of adjudication are firmly entrenched in the South African legal system and that its constitutional jurisprudence should serve as a model for other democratic systems.
The Rising Confidence and Independence of Courts in Africa
A brief review of the judiciary in post-colonial Africa, followed by an attempt to review for a general and not only legal audience the superior court decisions taken by the courts of the EAC - East African Community, ECOWAS - Economic Community of West African States, as well as in Burkina Faso, Benin, The Gambia, Kenya and South Africa.
Constitutional Courts of South Africa and Zimbabwe: A Contextual Analysis
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This paper is a contextual analysis of the Constitutional Courts of South Africa and Zimbabwe. Both Courts are founded on almost identical constitutional provisions, but have proceeded on markedly different jurisprudential trajectories. Whilst the South African Court is celebrated for delivering on the “promise” of judicial review, the Zimbabwean Court is generally viewed as a captured institution, subject to the whims of the executive. This understanding of courts as a binary between those enabling of and those constraining against executive and legislative power risks generalizing and falsely homogenizing the process by which courts claim and exercise power. It also fails to account for the reasons why courts, even those in authoritarian regimes, remain productive sites of human rights enforcement. This has the adverse effect of unduly crediting written law as the sole source of judicial power without accounting for contextual influences which enable or constrain the exercise of that power. Focusing on constitutional interpretation… fails to question how courts achieve the power, often in direct contradiction to a legislative majority or a popularly elected executive, to decide on issues of fundamental social importance. The doctrinal response is, of course, to point to the sections of the Constitution which explicitly grant the Court the power of judicial review, or failing which to refer to case law in which the power was assumed. This response, however, fails in the face of a history in which courts, even when explicitly granted powers of judicial review, have either been ‘executive-minded’ in their deference to the executive or just failed to exercise this authority.