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11 Building Judicial Independence in Common Law Africa
... An ideational camp counters that judges' conception of their professional role is more consequential (e.g. , Widner 1999;Scheppele 2006;Hilbink 2006;Kapiszewski 2012;Hilbink 2012). This article enters the debate by exploring whether an ideational shift towards judicial empowerment and independence can germinate from institutional reforms. ...
... Judicial behavior is determined largely by the professional norms that judges are socialized into when they join the bench. Some judiciaries emphasize assertiveness and independence from politicians, while others practice and reward deference-both internally, to judicial superiors, and externally, to political incumbents (Widner 1999;Kapiszewski 2012;Hilbink 2006Hilbink , 2012. However, change in the dominant professional role conception is possible; it can be jumpstarted through an ideational shift among a small group of judges. ...
Can an ideational shift towards judicial empowerment germinate from institutional reforms? Or is significant turnover in the judicial corps necessary to produce new professional norms? These questions are both theoretically important and policy relevant as rule of law reformers struggle to create powerful and independent judiciaries. Ukraine's 2014 Euromaidan revolution and the comprehensive judicial reform adopted in its wake allows us to explore these questions empirically. The centerpiece of the reform was a judicial lustration law, which sacked all court chairs and gave Ukrainian judges the right to elect new chairs in a secret ballot. This paper analyzes the court chair elections using an original dataset with individual‐ and court‐level data. The key finding is that less than a fifth of Ukrainian judges embraced their newly‐granted agency, whereas the overwhelming majority followed professional norms of deference and re‐elected the sacked court chairs. The finding holds for all court levels and for all regions of Ukraine. Beyond Ukraine, these results suggest that empowering judges in a civil law judiciary is unlikely to lead immediately to a judicial behavior shift. Regardless of how auspicious the strategic environment is, professional norms are sticky and civil law judges may inertly follow their superiors.
... The strategic calculation would refer to a state where possible risks are too small, so judges are willing to disregard desires of powerful actors (Helmke 2002, Helmke 2005. Strong belief in the rule of law ideal would suggest their ability to resist even if possible risks are high, and finally, they can resist when they believe they can increase costs for powerful actors -for instance, by calling the attention of media (Widner 1999). Taking all the stated into consideration, in this research I will understand independence as a consequence of the interplay between powerful actors' capacity and willingness to influence courts in combination with resistance exercised by judicial actors. ...
... Their powers to alter institutions are however very much dependent on the context in which they find themselves. For instance, as Franklin Delano Roosevelt's 'court-packing plan' showed, such an intrusion can face "enormous public opposition" (O'Connor 2014, 12) which can prevent them from stifling the judiciary (Vanberg 2001, Widner 1999). Of course, the level of public opposition is dependent on further factors -such as perceived competence of judiciary, its impartiality, or efficiency. ...
In the last decades, we observe an increase in judicial self-governance all over the world. Encouraged by a variety of international documents, governments have given up on some powers regulating the judicial branch in favor of judges in an attempt to secure independence and better performing judiciary. Special emphasis has been placed on the issue of judicial careers, which according to these documents, should be administered by judges. Slovakia is one of the countries which went from a model of an administration dominated by the Ministry of Justice, to one in which bodies, where judges constitute a majority, make most of the decisions. Despite that, the Slovak judiciary meets expectations neither with regard to perceived independence, nor performance. This thesis looks at the process of selection of Slovak district court judges between 2012 and 2015 in the context of expectations of the truly independent judiciary when these powers are transferred into the hands of judges. To the theoretical discussion on judicial independence, the thesis introduces a step towards a unified theory of the concept, which aims to tie institutional design with outputs of the system through the substantive use of powers to change the composition of the judicial branch. Judicial independence is here defined as a consequence of the interplay between powerful actors’ capacity and willingness to influence courts in combination with resistance exercised by judicial actors. This definition acknowledges that threat to independence may not come only from external actors but includes internal threats as well. Internal threats are then a possibility when formal powers to influence courts belong to judiciary itself, and the judiciary has its own distinct interests to further. These are in a post-communist context related to bureaucratic and corporatist attitudes, which try to ensure the survival of existing practices and protection of the status quo. It is hypothesized that these attitudes are realized through preferring the selection of such candidates with higher social capital – knowing the ‘right’ people, and higher cultural capital – being educated and socialized with ‘right’ values. With regard to the methodological contribution, the thesis introduces Judiciary Autonomy Index, which measures allocation of formal powers concerned with professional careers of judges – hence, de jure institutional independence. This is in turn examined in the light of actual functioning of the process of selection of judges, understood as a funnel, where from eligible candidates only some are actively considered, of those only few are shortlisted, and of those only one is selected and eventually appointed. For this, the thesis uses a variety of statistical methods and finds that candidates with higher social and cultural capital are consistently preferred in the process as a whole, as well as in its particular stages.
... For courts to develop accountability functions they need supporters (among political parties, the legal community, donors, business, or the general public) to make it opportune for the government to accede to judicial authority (Widner 1999;2001). Government officials are more likely to submit to judicial authority where there is a culture of legalism and respect for the rule of law is central to the legitimacy of the regime. ...
... Government officials are more likely to submit to judicial authority where there is a culture of legalism and respect for the rule of law is central to the legitimacy of the regime. Similarly, where the legal community is strong, or where a strong business community requires a functioning legal system, it is more costly to ignore or overrule the courts (Widner 1999;2001). Neither Malawi or Uganda has particularly strong protective constituencies for the judiciary. ...
... Previous studies have focused on the independence of different types of agencies and bodies, notably central banks (Bagheri and Habibi 1998;Eijffinger and Haan 1996;Fischer 1995;Prast 1996), the judicial system (Domingo 1999;Feld and Voigt 2003;Ferejohn 1999;Rosenn 1987;Widner 1999), and public and regulatory agencies in general (Bressman and Thompson 2010;Gilardi 2004;Gilardi and Maggetti 2011;Vermeule 2013;Wonka and Rittberger 2010). ...
National human rights institutions (NHRIs) have important roles to play for the protection, promotion, and monitoring of human rights. These institutions are set up by governments that have a special role in upholding human rights but at the same time violate these rights. This book tells a story of the choices that governments have made when it comes to establishing and changing their NHRIs and how these choices affect the ability of the institutions to be effective and to fulfil their roles.
The book argues that while previous research has emphasised the homogeneity of NHRIs, these institutions vary considerably in their type, design, and strength – and, at least partly as a consequence, in their capacity to hold actors to account for violations and transgressions. While some institutions have been designed to be little more than lapdogs, firmly controlled by the government, others have been designed, and proven to function, as true watchdogs, holding governments to account for their actions.
Drawing on an ambitious mixed-methods research design, using quantitative methods to describe and explain the establishment and change of NHRIs and qualitative methods to trace how the design of NHRIs matters for their effectiveness, the dissertation makes three main contributions. First, theoretically, it presents a new conceptualisation on
NHRIs, their design, and their strength. Second, it studies institutions that have rarely been studied and thereby makes an empirical contribution through both a descriptive and explanatory analysis using a new dataset on the design of 88 institutions in all African countries, from 1960 to 2014, and in-depth case studies on the NHRIs in Namibia and South Africa. Finally, the study presents a methodologically innovative approach to the research on NHRIs, especially in Africa, in its careful combination of quantitative techniques, used to describe and explain the variation within and among institutions,
and qualitative techniques, used to trace how design matters for effectiveness.
The dissertation presents three principal sets of findings. First, it finds that practically all countries have come to have an NHRI, with many having two (or even more) institutions. These institutions, however, have differed in terms of type, design, and, as a result, strength, even if institutions tend to be increasingly strong already when established. The analysis indicates that ties to other countries, whether in the shape of membership in international organisations (IO) or diffusion from other countries, may affect the establishment of NHRIs. Second, it finds that NHRIs are far from static as most see their
design change, typically in ways that makes them more independent and more authoritative. Diffusion, official development assistance, and the respect for human rights are linked to regimes having stronger NHRIs, while IO membership see the opposite relationship. Such membership, however, is linked to a higher propensity to change institutions. Finally, the study finds that the variation in the design of institutions matters for their effectiveness, but that it often interacts with other factors, such as regime type. These findings have implications for both research and policy, for instance for the study of politicisation and backlash of both human rights in general and for NHRIs specifically.
... In addition, the judiciary itself can pose as a counterweight to powerful actors' whimsy, and certainly can resist the attempts of undue influence -be it on the basis of their own belief in the rule of law, their understanding of their role in the broader context, cost-benefit analysis, or perhaps it can depend on their social legitimacy 23 or support from the media. 24 To put it differently, proposed conceptualization and operationalization of judicial independence seem to be skewed in favor of countries that followed a variety of international recommendations and transferred considerable powers into the hands of the judiciary. However, as several scholars have argued before and as empirical evidence suggests, 25 the transfer of formal powers from political branches to the judiciary does not necessarily decrease the threat of misuse of these powers, but rather should expand our attention to other actors (including those within the judiciary) as well. ...
This article focuses on conceptual issues regarding the new methodology of the European Network of Councils for the Judiciary (ENCJ) for measuring judicial independence and accountability. First, we argue that the proposal mixes up several concepts - judicial independence, judicial accountability, transparency of the judiciary, and public trust in the judiciary - which should be treated separately. Second, the proposal relies too much on conceptions of independence developed by the judicial community. As a result, it treats judicial administration with higher levels of involvement of judges as inherently better without empirical evidence, and does not sufficiently distinguish between de iure and de facto judicial independence. Moreover, the ENCJ's indicators of judicial accountability are underinclusive as well as overinclusive and do not correspond to the traditional understanding of the concept. Finally, we argue that the ENCJ has to accept the possibility that (at least some types of) judicial councils (at least in some jurisdictions) might negatively affect (at least some facets of) judicial independence and judicial accountability. As a result, the ENCJ must adjust the relevant indicators accordingly.
... With the judicialization of politics, an appreciation of judges as protectors of their own autonomy is necessary, and the first step toward this is acknowledging judges as social and political actors (Trochev and Ellet 2014:68). The idea that judges are social and political actors is supported by instances where African judges have played a central role in initiating bids for greater independence (Widner 1999). There is evidence of this in the numerous chapters of the International Association of Women Judges scattered over the region. ...
The judicialization of politics has been described as one of the most significant phenomena of late twentieth- and early twenty-first-century government. The courts have more judicial muscle than they did centuries ago, but it would be a mistake to assume that with more power has come more protection. This article discusses judicial independence by highlighting some concerning instances of judicial interference that have occurred in sub-Saharan Africa since 2010. In my discussion of these threats, I highlight that the executive is not the only avenue by which interference in the judiciary occurs. I conclude with suggestions of ways in which judges as social actors can mitigate undue influence and present a stronger judiciary.
... Deferent judiciaries are less likely to produce decisions that challenge and override the interests of powerful political actors. Judiciaries with professional orientations that emphasize hierarchical control within the judiciary are also less likely to be politically independent (Widner, 1999;Scheppele, 2006;Hilbink, 2012;Kapiszewski, 2012). Over the past year and a half, the Ukrainian judiciary, long characterized by low internal dependence and deference to politicians, has proven to be impervious to civil society pressure for radical change and has instead sought to preserve the status quo. ...
... 16 See for example Dakolias (1995: 172-76), Fiss (1993: 55-56), Becker (1970), Domingo (1999: 153-55), Rosenn (1987), Larkins (1996). 17 See for example Domingo 1999; Hammergren 1998; Larkins 1996; and Widner 1999. 18 Supreme Court justices (in particular) should not be hired and fired at the whim of the executive and hence be politically dependent on their appointer. ...
This paper is about how varying degrees of judicial independence may influence policy making in the field of human rights. I explore factors that may account for why some Latin American courts, years after the return to democratic rule, are currently prosecuting (ex) military officers for crimes they committed under authoritarianism, while other courts have chosen to ignore this politically explosive issue. I argue that the recent efforts of democratic executives to formally strengthen the courts and make them more independent have enabled justices to reinterpret existing amnesty laws and take on human rights cases they would have rejected earlier. In addition to an increase in judicial independence, two more factors are necessary, though not sufficient conditions, for trials to take place: (1) a reduction in military threat and (2) a persistent demand for justice. To support my argument, I carry out an in-depth qualitative study of two 'success stories', Argentina and Chile. Both countries have had extensive judicial reforms and trials in recent years. Because many newly established democracies in various regions of the world are in the process of strengthening their institutions and democratic practices as well as trying to deal with the legacies of their authoritarian pasts, the lessons drawn from these two Latin American countries should be of more general interest to scholars of both political science and law.
... The se are related to the fundamentals of the political and economic context, the level of state formation and the government's capacity to implement rulings, as well as their political will. The nature of the political contexts is particularly important, including the balance of power between the competing political forces, such as whether there is a dominant party that can more readily afford to ignore court decisions, or a more balanced political situation where the court has 'protective constituencies' rendering it potentially costly to overrule or ignoring court decisions (Widner 1999). Political culture is also a factor influencing the cost of ignoring court orders. ...
The paper investigates litigation as a strategy to advance the social rights of marginalized people, asking under what conditions it is likely to be effective - in the narrow sense of winning cases, and in the broader sense of changing social policy. It draws on reported experiences with social rights litigation in different parts of the world to develop a framework identifying conditions that are favourable to public interest litigation by contributing to: effective voicing of social rights grievances; responsiveness of courts to social rights claims; judges' capability to find appropriate remedies; authorities' compliance with judgments and implementation through social policies. It finds that competent public interest litigators (supported by international expertise), is a key to winning cases in court, but that real policy impact is rare without organisations and social movements that can utilise the litigation process as part of a broader strategy of social and political mobilisation. Litigation on its own has limited potential to change the situation on the ground, but creates opportunities for other actors. With a 'receptive apparatus' in place litigation seems to be effective in bringing out facts that can be used for advocacy purposes, fed into social and political discourses and directly inform policy processes.
... 43 See for example Dakolias (1996). 44 For example, Widner (1999). ...
Comparative law is a common subject-matter of research and teaching in many universities around the world, and the twenty-first century has aptly been termed 'the era of comparative law'. This Cambridge Handbook of Comparative Law presents a truly global perspective of comparative law today. The contributors are drawn from all parts of the world to provide different perspectives on how we understand the 'law' and how it operates in practice. In substance, the Handbook contains 36 chapters covering a broad range of topics, divided under the following headings: 'Methods of Comparative Law' (Part I), 'Legal Families and Geographical Comparisons' (Part II), 'Central Themes in Comparative Law' (Part III); and 'Comparative Law beyond the State' (Part IV).
Judiciaries must be politically impartial and immune from political interference if democracy is to be consolidated in countries in transition from authoritarian rule. Without an independent judiciary there can be no rule of law, and without the rule of law there can be no democracy. Judges and Democratization is based on the premise that democracy cannot be consolidated without the rule of law of which judicial independence is an indispensable part. It pays particular attention to the restraints placed upon judicial independence, and the reforms which are being applied, or remain to be adopted, in order to guard against the different kinds of interference which prevent judicial decisions being taken in a wholly impartial way. It examines the paradox of judicial activism arising from the independence endowed upon the judiciary by post-authoritarian constitutions. The book asks how, in the context of this endowed authority, such accountability can be made compatible with the preservation of judicial independence when the concept of an accountable, independent judiciary appears to be a contradiction in terms. This text will be of key interest to teachers and students of politics, comparative government/politics, combined politics and law, democracy and governance, human rights and democratization, and democratic development.
The increase in demand and prices of most high-value natural resources over the past five decades has resulted in massive income gains for resource-abundant countries. Paradoxically, many of these countries have suffered from slow economic growth, weak political institutions, and violent conflict. To combat corruption, increase accountability, and promote government effectiveness, the international community and advocacy groups have been promoting transparency as the remedy to misappropriation and mismanagement of revenues. Consequently, advocates, officials, and diplomats increasingly focus on transparency as the means to better manage revenues from high-value natural resources in developing countries.
The linkages between transparency, accountability, and management of revenues from high-value natural resources require careful examination. This article provides a review of the literature on transparency and accountability in the context of natural resource revenue management, discusses how transparency is conceptualized and understood to function in this context, and assesses the existing evidence for the proposition that increased transparency leads to more accountability and improved natural resource governance. The article concludes with a discussion on the evaluation of transparency policy initiatives.
Research on the behavior of the Namibian judiciary highlights the importance of context-sensitivity in comparative courts research. Drawing from strategic understandings of judicial behavior, the analysis examines the extent to which political influences are affecting the behavior of judges in Namibia. The findings indicate that, for the most part, Namibia's judges have exercised high levels of independence in their decision making. Yet deference to other branches has been apparent among certain expatriate judges who have faced unique vulnerabilities in the Namibian political system. Context sensitivity proved critical to the study, as it enabled more effective operationalization of concepts and generation of variables to test existing theory. Beyond this, such awareness enhanced the ability to interpret the findings about judicial behavior in Namibia and generate new insights to inform inquiry.
Abstract Despite improvements in some social sectors in some countries, conditions in African countries worsened,over the last two decades of the 20th century. As corporate globalization continues to make inroads into national policies and politics, further weakening the ability of African countries to act, there is a need to explore other alternatives for development,in Africa. Although this article is essentially an effort to articulate a theoretical deconstruction and reconstruction of the African State, in its content, it is based on numerous empirical case stud- ies and research projects developed by the author over the years on Africa's international relations, political economy, development, and world politics. Reconceptualizing the African state is a must because, firstly, about four decades of preoccupation with,development,have yielded only very meager returns. It has proven a mistake to attempt to analyze something that has not yet been seriously on the agenda, dealing mainly with symptoms related to behav- iors of the state instead of its substance. Secondly, all the available evidence points to the inescapable conclusion that political conditions in Africa are the greatest impediment to development. Thirdly, despite the explosion of the num- ber of actors in the global system and the deliberate efforts of mega financial, multinational and multilateral institutions to African States, and also despite the fact that the African systems,of delivering services or performance at the national level are highly problematic, the African State is still the most visible actor in world politics. Finally, the fate of Africa's peoples and cultures has been historically defined by the dynamics of the state, especially its role in interna- tional political economy,and in making alliances for its own,immortality. Colonial Africa was created essentially as states and not as nations, and neo- * Co-founder and Director, Pan-African Studies and Research Center in InternationalRelations and Education for Development (CEPARRED), Abidjan, Cote d'lvoire; Professor of Political Science and Herbert J. Charles and Florence Charles Faegre Professor of Political Science, Chair, Department of International Studies, Wells College; Visiting Scholar, Department of City and Regional Planning at Cornell University; Senior Fellow, Institute for African Development at Cornell University; and Visiting Professor of Political Science, University of Massachusetts at Boston.
An independent judiciary with the power to constrain the executive and legislative branches is commonly thought to be the foundation of government under the rule of law. However, it is not obvious why those with political power would ever tolerate the constraints imposed by an independent court. I offer an explanation for independent judicial review that is based on ongoing political competition between risk-averse parties. An independent judiciary is a mechanism through which these political competitors can enforce mutual restraint. But support for independent judicial review is sustainable only when (1) the political system is sufficiently competitive, (2) judicial doctrine is sufficiently moderate, and (3) parties are both sufficiently risk averse and forward looking. I employ a simple formal model to show how these variables influence the political sustainability of independent judicial review, and I also present the results of a preliminary empirical test that confirms the central hypotheses.
Accountability has been identified as one of the most serious issues in the new democracies. Typically, assessments of the strength of democratic accountability in Africa rarely go beyond the elected and their election. This article argues that an examination of accountability needs to be widened to include all who make decisions that affect the community leaving them with no effective choice, whether they are elected to do so as representatives, or do so in a private capacity as power holders. The reasons are theoretical, empirical and pragmatic. Though the argument is primarily concerned with considering where the limits of the democratic ideal should be fixed, some examples are given of the gap between democratic ideals and actually existing democracy in sub‐Saharan Africa. They reveal a wide variation and contradictions in the actual practice of accountability, so reinforcing the point that attempts to assess the measure of accountability must be multi‐dimensional.
In this article, a new definition of judicial independence is proposed such that 'judicial independence' can and should be defined as the judiciary’s independence from the executive, as measured by the amount of discretion that individual judges exercise in particular policy areas. This discretion varies depending on the political interaction between the legislature and the other branches of government. This definition, compared to the others reviewed, will provide political scientists and legal scholars with a better analytical tool for measuring and modeling judicial independence in both the United States and abroad.
This paper is about how varying degrees of judicial independence may influence policy making in the field of human rights. I explore factors that may account for why some Latin American courts, years after the return to democratic rule, are currently prosecuting (ex) military officers for crimes they committed under authoritarianism, while other courts have chosen to ignore this politically explosive issue. I argue that certain constitutional changes undertaken in recent years coupled with a reduction in military threat have increased the propensity of judges to reinterpret existing amnesty laws and take on human rights cases they would have rejected earlier. At least one more factor is a necessary, though not sufficient, condition for trials to take place: a persistent demand for justice. To test my argument, I carry out an in-depth qualitative study of two ‘success stories’, Argentina and Chile. Because many newly established democracies in various regions of the world are in the process of strengthening their institutions and democratic practices, as well as trying to deal with the legacies of their authoritarian pasts, the lessons drawn from the Southern Cone should be of more general interest to scholars of both political science and law.
This paper presents a taxonomy of accountability and the rule of law with respect to both substance and process. It begins with efforts to establish "law and order" under the criminal law and with the use of the law to deal with abuses of the past regime. Next, the paper discusses law as an organizer of private eco- nomic activity. Following this discussion of "private" law, the next section deals with law as the basis for state organization and authority concentrating on the fundamental question of how law can be used to hold state offi cials accountable. Accountable policymaking involves the provision of information, open procedures, and the establishment of private organizations to contest government policies. Finally, a section considers the role of the judiciary as a guarantor of both private law and publicly accountable government. The article concludes with some thoughts about priority setting in consolida- ting democracies. Palabras clave: rendición de cuentas, estado de derecho, democracia, poder judicial, participación : rendición de cuentas, estado de derecho, democracia, poder judicial, participación :
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