On Judicial Independence in Africa

On Judicial Independence in Africa

Independence of the judiciary is vital to the administration of fair and equal justice in a democratic society. Many nations which, boast functional and effective institutions, are always grounded in transparent judicial systems that are able to regulate both the state and its citizens without external interference or compromise.

In Africa, the question of judicial independence is often reflective of medieval England, from whose common law most of the African Commonwealth countries have derived their national legal systems. Justice, in England, was a royal prerogative, which the ruler carried out via appointed officials. Not only was separation of powers was non-existent, but also those who judged were puppets of the rulers. For a long time, post-colonial Africa has elicited similar traits where the heads of state have crippled the judiciary by placing their cronies in any critical judicial office in order to secure their position in office.

The tragedy of the African judicial conundrum is that judicial independence is well enshrined in many African constitutions.  Separation of powers and the rule of law are seminal principles that have continued to inform constitutional jurisprudence. Theoretically therefore, the legislature, the judiciary and the executive should be distinct and independent arms of the government but practically, these arms are often very hard to distinguish.

Some of the proclamations of the role and independence of the judiciary as enshrined in constitutions of select African states are the following:

Articles 125 of the Constitution of Ghana:

“125 (1) Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.

3) The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.

Article 78 of the Constitution of Namibia:

“78. The judicial power shall be vested in the Courts of Namibia, which shall consist of:

a)    A Supreme Court of Namibia

b)   A High Court of Namibia

c)    Lower Courts of Namibia

No member of the Cabinet or the Legislature or any other person shall interfere with Judges or judicial officers in the exercise of their judicial functions, and all organs of the State shall accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law.”

Articles 126 of the Constitution of Uganda:

“126 (1) Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of people and in conformity with law and with the values, norms and aspirations of the people.

128 ( 1) In the exercise of judicial power, the courts shall be independent and shall not be subject to the direction of any person or authority .

(2) No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.

Sections 79 B of the Constitution of Zimbabwe:

79 B. In the exercise of his judicial authority, a member of the judiciary shall not be subject to the direction or control of any person or authority, except to the extent that a written law may place him under the direction or control of another member of the judiciary.”;

Articles 165 and 166 of the Constitution of Egypt:

“165 The judicial authority shall be independent. It shall be exercised by courts of justice of different sorts and competences. They shall issue their judgments in accordance with the law.

Given the disparity between the theoretical and practical aspects of the African judicial process, there is a dire need for a reconstruction of the judicial institution. Corruption of the judiciary is a function of several problems:

a)    Poor payment of judicial officers thus making them gullible to corruption.

b)   Lack of information by the populace of their rights within the judicial system

c)    Poor investigative work by state law enforcement agencies resulting in half-baked prosecutions often resolved by paying the judge for a verdict.

d)   Lack of a sufficient number of judges prompting individuals to pay in order to get a hearing

Before Africa can boast an independent judiciary, these and other problems not directly related to the judiciary will have to be addressed. The independence of the judiciary is not only an end in itself, but also a tool to be used to discover the truth and do justice and promote political, social and economic progress.


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