The positive role that judges could play in Africa has been
hampered by the increasing politicization of the judiciary,
judicial corruption, lack of resources and judicial conservatism,
according to Professor Charles Fombad of the Institute for
International and Comparative Law in Africa at the University of
Pretoria.
In a challenging address to the International Association of
Judges’ Africa region conference in Cape Town, Fombad urged judges
to take note that if these issues were not properly dealt with, the
“reverse winds” of authoritarianism and the decline of good
governance and constitutionalism, caused by politicians clinging to
power, might prevail.
Read the paper by Professor Charles Fombad
Unusual for the subject of constitutionalism to cause
discomfort, but Professor Charles Fombad’s paper at the conference
of the International Association of Judges’ Africa bloc seemed to
make some participants distinctly uneasy.
Originally from Cameroon, and now a staffer at the University of
Pretoria’s law school, Fombad did not mince his words. This expert
on constitutionalism and judicial independence in Africa said
judges across this continent had not always played their full role
as constitutional guardians, protectors of human rights and
impartial enforcers of the rule of law. This was partly due to
“judicial timidity and the abdication of responsibility by judges
deferring and pandering to the perceived or actual wishes of the
executive”.
It was one of the most challenging addresses at the conference,
forcing judicial officers from around the continent to re-examine
the mindset that they bring to bear when they considered cases that
could have a political impact.
Fombad said that despite an era of widespread constitutional
change in Africa, politics across the continent had become more
volatile because of the increasing tendency of politicians to hang
on to power. Politicians have resorted to manipulation of the
appointment system, the deliberate appointment of executive-minded
judges and even to intimidating the judiciary.
The problem of judicial corruption also remained a “potent
problem”. Though judges were “reasonably well paid”, with salaries
and pensions well above that of the average civil servant, the
institution was generally considered to be the most corrupt
institution in Africa after the police. “The quality of justice has
suffered where it becomes cheaper to buy a judge than hire a
lawyer.”
While many jurisdictions suffered from a serious lack of
resources, something outside the control of judicial officers,
there was another factor for which judges themselves were
responsible (apart from corruption), namely judicial conservatism,
he said.
Many African judges were not alive to the new progressive
constitutional spirit or have not shown this spirit in their
decisions. The new context included rejection of dictatorship and
sensitivity to issues of human rights, a field in which many judges
did not show an understanding of the changed thinking in the rest
of the world.
As African leaders intensified their fight to cling to power,
judges would find themselves under increasing pressure to decide
cases in a way that deferred to the executive. But the bench had to
“reflect contemporary desires and aspirations of the citizenry and
the progressive spirit of post-1990 constitutional reforms.”
This required judges who were willing to act as the last defence
against authoritarianism and to join the global judicial dialogue
about how to promote respect for the rule of law and good
governance.
In Fombat’s view, judicial independence was compromised by
“enthusiastic abdication of judicial responsibilities” – one of his
most scathing and challenging descriptions. African judges should
no longer be “timorous souls” as in the past. Instead they must be
“bold spirits” adopting a more principled and rights-sensitive
approach, using their constitutions as living documents and
ensuring that their countries did not breach international
commitments, even where these had been signed but not domesticated.
They should also join the “global judicial dialogue” and engage
with relevant foreign decisions and thinking.
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References
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By Carmel Rickard
(africanlii.org)