Review essay
African judges, in their own cause: Reconstituting
independent courts in contemporary Africa
H. Kwasi Prempeh*
Jennifer A. Widner, Building the Rule of Law: Francis Nyalali and the Road to Judicial
Independence in Africa. W. W. Norton & Company, Inc. 2001. Pp. 448.
The global spread of constitutionalism and judicial review, during the last
two decades,1 has generated vigorous scholarly interest and activity in the
comparative study of courts and judicial behavior in transitional democracies.2 On the vast continent of Africa, South Africa’s postapartheid
Constitutional Court, known for its innovative jurisprudence in the area of
rights,3 has emerged as the undisputed favorite of comparative constitutional scholars and social scientists4 as well as a lodestar for jurists across
*Associate professor of law, Seton Hall University School of Law. Email: [email protected]
1
See generally THE GLOBAL EXPANSION OF JUDICIAL POWER (Neal Tate & Thorsten Allinder eds., NYU
Press 1995). See also Bruce Ackerman, The Rise of World Constitutionalism, 83 VIRGINIA L. REV.
771 (1997).
2
See, e.g., RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW
CONSTITUTIONALISM (Harvard Univ. Press 2004); FROM DEMOCRACY TO JURISTOCRACY? THE POWER OF
JUDGES: A COMPARATIVE STUDY OF COURTS AND DEMOCRACY (Carlo Guarnieri, Patrizia Pederzoli eds.,
C.A. Thomas 2002); TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN
ASIAN CASES (Cambridge Univ. Press 2003); HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL
JUSTICE IN POST-COMMUNIST EUROPE (Univ. of Chicago Press 2000); ALEC STONE SWEET, GOVERNING
WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (Oxford Univ. Press 2000); CHARLES R. EPP, THE
RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE (Univ. of
Chicago Press 1998).
3
See, e.g., State v. Grootboom, 2000 (11) BCLR 1169 (CC) (state has judicially enforceable
constitutional duty to enact and implement reasonable affirmative measures to meet the housing
needs of persons living in destitute conditions); State v. Baloyi, 2000 (1) BCLR 86 (CC) (state has
constitutional duty to provide effective remedies against domestic violence); August v. Electoral
Commission, 1999 (4) BCLR 363 (CC) (constitutional right to vote extends to convicted and
remand prisoners, and electoral authority is obligated to make appropriate arrangements to
enable such citizens to register and to vote); State v. Makwanyane, 1995 (3) SA 1 (CC)
(declaring death penalty unconstitutional as a violation of ‘‘human dignity’’).
4
See, e.g., Cass Sunstein, Social and Economic Rights? Lessons from South Africa, 11 CONST. FORUM
123 (2001); SIRI GLOPPEN, SOUTH AFRICAN CONSTITUTIONALISM, 1994–2000: THE DIFFICULT
ª The Author 2006. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I·CON, Volume 4, Number 3, 2006, pp. 592–605 doi:10.1093/icon/mol018
592
African judges, in their own cause
593
the globe. Outside of the South African Court, however, scholarship or
research on courts and judicial activity in Africa is scant.5
The paucity of scholarship and research on courts in Africa is not new. As
was true during the colonial era in Africa, Western scholarly interest in
African law has focused primarily on documenting the customary law of
Africa’s subnational groups. In the heyday of the ‘‘law and development’’
movement, as African states emerged from colonialism, scholarly interest in
African national law and legal systems grew, but even then the dominant
concern was with issues of legal pluralism, the integration and codification of
disparate customary law regimes, and the modernization of statutory law. By
the mid-1970s, as the law-and-development movement began to flounder,
these scholarly endeavors, too, would be abandoned. Since then, social
scientists studying and writing about Africa have focused on ‘‘political
Africa,’’ consciously ignoring courts and matters judicial as marginal or
inconsequential to an understanding of the nature and dynamics of African
politics. With the publication of Building the Rule of Law: Francis Nyalali and
the Road to Judicial Independence in Africa, social scientist and Africa scholar
Jennifer Widner6 has taken an important first step toward remedying the
scholarly deficit in this area and ending the marginalization of Africa from
current comparative discourses on the role of courts and judges in modern
democracies.
Widner’s book is no mere gap filler. Beyond adding a measure of
geographic diversity to the comparative study of courts in transitional
democracies, Building the Rule of Law offers important new perspectives on
and insight into the struggle for judicial independence in emerging
democracies. Using, as her point of reference, the judicial career of Francis
Nyalali, chief justice of Tanzania from 1976 to 2000, Widner tells the story
of how, during recent periods of political and economic uncertainty and
change in Africa, judicial leaders in the common law countries of eastern
and southern Africa acted to secure institutional independence for their
courts and, in the process, used their influence strategically to open and
expand democratic space in their changing societies. In highlighting the role
of judicial—as opposed to political—elites as the ‘‘strategic actors’’ in the
building of independent courts, Widner’s account departs from the
conventional explanation of judicial empowerment in contemporary
BALANCING ACT OF THE CONSTITUTIONAL COURT (Ph.D. dissertation, Univ. of Bergen, Norway, 2001),
available at www.fou.uib.no/drgrad/2001/707001 (last visited May 9, 2006).
5
See Mary L. Dudziak, Who Cares About Courts? Creating a Constituency for Judicial Independence in
Africa, 101 MICH. L.REV. 1622, 1630 (2003) (‘‘Although there was a flurry of interest during the
independence years, Africa has remained largely off the agenda of American legal scholarship.’’).
6
Jennifer Widner is currently a professor in the Department of Politics at Princeton University.
At the time Building the Rule of Law was published, she was a professor at the University of
Michigan, Ann Arbor.
594 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
H. K. Prempeh
democracies as primarily the design of self-interested political elites faced
with an uncertain future.7
This review essay is in two main parts. Section 1 is essentially descriptive
and outlines the fundamental themes and junctures in Widner’s account of
the evolution of independent courts in the common law countries of eastern
and southern Africa during the last decade of the twentieth century. In
section 2, I highlight the broader conceptual and comparative significance of
Widner’s story, particularly as it relates to conventional notions of judicial
activism and the proper role of judges in political society.
2. The fall and rise of judicial independence in Africa
Africa’s first encounter with independent courts was short-lived. Introduced
at the moment of national independence by new constitutions crafted by
departing colonial authorities, the idea of judicial independence—of a
judicial function separate and apart from the executive and legislative
functions and of judges free from routine political control—would be among
the first casualties of the illiberal ideologies that came to dominate and define
Africa in the immediate postcolonial period. The Africa of the 1960s and
1970s (even the 1980s) was the Africa of one-party states, of charismatic,
often military-backed, personal rule, and of state commercial monopolies
(p. 100).
As Widner explains, ‘‘The structure of the political system was
inauspicious for the development of independent courts’’ (p. 100). Not
only independent courts but the entire project of constitutionalism itself—the
idea of government subject to countervailing checks or judicially enforceable
limits—was quickly abandoned by Africa’s postcolonial governments as a
luxury their new ‘‘nations in a hurry’’ could ill afford.8 The judicial response
to this state of affairs was predictably one of deference to the authority of the
political class and abstention from any meaningful review of governmental
action. For those judges who occasionally refused to be compliant, ruling
politicians responded with summary dismissal (p. 127)9 or, in a few cases,
worse.10
Beginning in the early 1990s (earlier in some cases), a new reality began
to take hold in Africa. On the domestic front, pressure for political and
7
See, e.g., HIRSCHL, supra note 2; GINSBURG, supra note 2.
8
For a contemporary account and analysis of the failure of postcolonial constitutionalism in
Africa, see H. Kwasi Prempeh, Marbury in Africa: Judicial Review and the Challenge of
Constitutionalism in Contemporary Africa, 80 TULANE L.REV. (forthcoming 2006).
9
For example, then-president Kwame Nkrumah of Ghana dismissed the country’s chief justice two
days after a court presided over by the chief justice acquitted certain defendants in a treason trial.
10
A Ugandan chief justice was among the countless victims of Idi Amin’s murderous reign of
terror.
African judges, in their own cause
595
economic reform began to mount in one African country after the other, as
the continent’s long-serving autocrats ran out of options to deal with their
perennial fiscal crises and proved unable to deliver economic growth or
development or even personal security for their citizens. The economic
bankruptcy of the state also made African governments both vulnerable and
amenable to unilateral ‘‘conditionalities’’ from external financiers and
donors, the most influential of which, the Bretton Woods institutions, began
to urge liberal economic and political reforms. African governments came
under pressure to make themselves ‘‘presentable’’ in order to attract and
retain aid and investment.11
The gathering momentum for change precipitated political openings
across Africa, as governments began to accede to demands for changes in the
rules of the game. In some instances, this led to legislative or constitutional
reform, including a formal grant of, or reaffirmation of commitment to,
judicial independence. But, as Widner notes, ‘‘if [judicial] independence often
had its roots in a delegation of authority by the executive or the legislature,
that is not where the story ended’’ (p. 393). To secure credible independence
for the courts would require more—a great deal more—than mere political
concessions or ‘‘parchment barriers’’ could provide. Africa’s nominally
independent judiciaries needed, above all, dependable and influential allies,
a constituency for the courts that had a strong enough stake in the
institution of an independent judiciary that it could be counted on to
mobilize and so repel imminent attack on the independence of the courts or
to rise to the defense of the courts should politicians manifest any untoward
intentions.
In the Africa of the late 1980s and early 1990s, however, the courts still
had no ‘‘natural constituents’’ to speak of (p. 393). Public trust in, and
demand for, courts remained abysmal; the private commercial sector was
small and often dependent on government patronage for its own survival;
foreign operators generally did not litigate in host-country courts, relying,
instead, on contractual provisions to litigate or arbitrate claims in other
jurisdictions; local bar associations were often internally divided and
‘‘parochial’’ in their concerns;12 and, as for regime opponents, they still
had considerable organizational and other teething problems of their own to
worry about, quite apart from the fact that ruling politicians did not initially
perceive much of an electoral threat from their opponents. Even the courts,
including judges and other judicial personnel, found themselves largely in a
11
12
Richard Joseph, Africa, 1990–1997: From Abertura to Closure, 9 J. DEMOCRACY 3, 4 (1998).
See, e.g., JUSTICE ENJOINED: THE STATE OF THE JUDICIARY IN KENYA 98 (Drew Days III et al. eds.,
Robert F. Kennedy Memorial Center for Human Rights 1992) (noting that ‘‘until recently, the
Law Society of Kenya (the Kenyan professional bar association) has often concerned itself more
with narrow, parochial matters, such as maintaining the fee structure for lawyers, than
standing up for individual rights’’).
596 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
H. K. Prempeh
business-as-usual mode, not quite ready, operationally or culturally
(including doctrinally), to meet the challenges of the times.13
Faced with this scenario, the future of judicial independence in Africa lay,
literally, in the hands of judges and the courts themselves. This situation,
naturally, placed a premium on the caliber of judicial leadership (p. 37) and
partly explains ‘‘why courts in some countries gained greater independence
from presidents and legislatures, while in others partisan political influence
affected the disposition of individual cases’’ (p. 24). It also supplies the logic
behind the biographical thrust of Widner’s work, focusing, as it does, on the
efforts of judicial statesmen like Tanzania’s Nyalali who were able to seize the
moment.
How did judicial leaders go about building constituencies for their courts?
Widner recounts an array of strategic initiatives undertaken by judicial
reformers in this regard. As a start, and because ‘‘[d]omestic constituencies
took more time to build’’ (p. 35), Francis Nyalali and his peers in the region
identified the international community, notably bilateral and multilateral aid
donors, as important, if temporary, sources of support (pp. 394–395). For
one thing, cultivating alliances with international donors opened up funding
opportunities over and beyond the local governments’ strained budgets for
some of the initial reforms the courts needed to make to better serve their
clientele. Dependence on foreign assistance, however, could leave the
judiciary vulnerable to charges of undermining national sovereignty and
pushing an agenda favorable only to external interests (p. 211). Judges thus
had to proceed with tact, making sure that international assistance was
transparent and project-specific and showed measurable results.
Forging alliances with foreign donors has had a positive payoff for Africa’s
struggling judiciaries. For example, in 2001, Malawi’s ruling party, reacting
to a series of judicial decisions unfavorable to the government, launched an
assault on the courts, initiating proceedings to impeach certain judges.14 The
judiciary, led by the chief justice, stood their ground, threatening a collective
strike action if the legislature did not back down. The government’s eventual
retreat from its threatened course of action is credited, in substantial part, to
the swift and overt objection that the attack on the courts drew from
Malawi’s international donors.15
In the long run, however, security for judicial independence must be
homegrown and socially rooted. And this realization was not lost on Nyalali
and his regional peers. Creating ‘‘a broad base of support among the public
13
Id. at 31 (observing, with regard to the Kenyan judiciary, that ‘‘some judges felt that for
lawyers to bring a constitutional suit was tantamount to challenging the authority and
sovereignty of the Kenyan government’’).
14
Peter Vondoepp, The Problem of Judicial Control in Africa’s Neopatrimonial Democracies: Malawi
and Zambia, 120: POL. SCI. Q. 275, 288–329 (2005).
15
Id.
African judges, in their own cause
597
at large’’ was a topmost priority of Africa’s judicial reformers (p. 395).
Promoting legal literacy among the public formed a critical part of this
constituency-building effort. As Nyalali observed, ‘‘the greatest danger to the
rule of law was public ignorance of rights and the means to enforce those
rights’’ (p. 314). Thus, judges in the region often stepped out of their judicial
robes to undertake legal-literacy programs in order to increase public
awareness of legal rights and remedies and an appreciation of the role of the
courts. In this, they forged a mutually beneficial collaboration with the
media. Judges periodically contributed columns on legal issues for
newspapers and participated in other law-related educational initiatives on
radio and television (p. 322).
Improving the quality of justice and increasing access to justice also
mattered for public support for the courts. To achieve this goal required inhouse reforms in the administration of justice. Nyalali and his fellow judicial
chiefs introduced new case-flow management techniques to unclog civil and
criminal dockets. In Tanzania, a new institute was opened to train court
clerks and registrars (p. 390). Judicial leaders also addressed head-on the
thorny problem of corruption within the ranks of the judiciary. Nyalali
persuaded the Tanzanian judiciary to adopt a code of judicial conduct
modeled after the United States’ American Bar Association (ABA) Model
Code (1972) and convinced the legislature to pass a constitutional
amendment that made violation of the judicial code grounds for removal
of a judge (p. 279).16 Alongside reform in the ethics rules, some judicial
leaders, notably in Uganda, also secured inflation-indexed raises in judicial
compensation and a decoupling of judicial pay scales from the civil service
compensation structure, a move that placed judges in a substantially higher
pay bracket (p. 285).
Bringing the politicians on board would require an exceptional display of
judicial statesmanship. While the commitment of the political class to
judicial independence and the rule of law may have been thin and tentative,
the politicians could not simply be left out. While they could not be counted
on to advance judicial independence, ruling politicians retained enough
power to play the part of ‘‘spoilers,’’ blocking needed reforms. Strategic
engagement with the political class was thus an essential component of the
reform project. For Nyalali, this translated into what one might call
‘‘proactive deference’’ toward the political branches, especially in such
matters as the reform of substantive law, including constitutional reform. It
meant going directly to the politicians, including the president when
16
Enforcement of the code was placed in the hands of an independent Judicial Service
Commission, with first-tier superior court judges handling preliminary investigations of
complaints of ethics violations by judicial personnel within their geographic jurisdictions.
Following the implementation of the new judicial code in Tanzania, several judicial personnel
were dismissed for ethics violations during the 1990s.
598 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
H. K. Prempeh
necessary, to lobby and press for democratic reform and the repeal of
outdated and obnoxious legislation, recognizing, as Nyalali did, that
‘‘[e]nforcement of legislation widely considered unjust could jeopardize
popular approval and acceptance of the courts as an institution’’ (p. 36).
Conceding to the political branches their constitutional prerogative and
the authority to enact needed legislative and constitutional reforms both
conveyed and affirmed judicial fidelity to a larger principle—separation of
powers—that is itself preservative of the idea of judicial independence. By
giving the politicians their due, Nyalali and his judicial colleagues
strategically shared with their presidents and legislatures the initiative and
credit for advancing political reform and the rule of law.
3. Giving new meaning to ‘‘judicial activism’’
Widner’s account challenges certain conventional understandings and
assumptions concerning the appropriate role of judges in the social and
political life of a country. Regarding the development of independent courts
in democracies, for example, the prevailing academic literature looks for
explanation to the strategic choices and interests of political elites. Judges
and the courts feature in these accounts only in a passive and secondary
role, if at all—the assumption being that judges, possessing neither the
power of the purse nor of the sword, ‘‘must play little role in building
independence’’ (p. 33).
Thus, for instance, Mark Ramseyer has explained the emergence of
independent courts in terms of ‘‘electoral market logic,’’ as the response of
rational politicians to the Prisoner’s Dilemma that confronts them in
competitive democracies.17 On this view, judicial independence arises out of
the desire of politicians to insure themselves against the risks inherent in
sustained electoral competition. Regimes that expect to stay in power well
into the indefinite future have little incentive to promote or preserve judicial
independence. On the other hand, risk-averse politicians who anticipate
being in and out of power, alternating with their opponents over an extended
period of time, will value, and thus support the creation of, independent
courts in order to preserve a credible forum in which to contest their
opponents’ actions when they find themselves in the opposition. Independent
courts thus emerge as a sort of ‘‘insurance policy’’ for politicians likely to lose
a future election.18 Rational politicians operating in an uncertain and
competitive political environment thus become the primary promoters and
defenders of judicial independence.
17
J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. LEG.
STUD. 721 (1994).
18
GINSBURG, supra note 2, at 25.
African judges, in their own cause
599
Widner concedes that such conventional theories of judicial independence
might explain adequately the development of independent courts in certain
polities or at certain historical periods (p. 100)19 but contends that ‘‘[t]hese
viewpoints did not fully capture the African experience’’ (p. 34). This is not a
question of African exceptionalism. Widner’s point is, rather, that for African
countries, at the incipient stages of a democratic transition, ‘‘competitive
multiparty systems still lay in the future, and the incentives [to support
judicial independence that] competition might have provided to politicians
simply weren’t there’’ (p. 34). Also lacking in the African examples Widner
studied was a constituency for independent courts, such as might have
emerged from an influential private corporate sector or a public interest bar
(p. 35). Given these deficits, but also because political elites might later
renege on earlier commitments to support judicial independence (p. 35),
judges themselves became ‘‘visible actors on the stage’’ (p. 34), taking the
initiative to cultivate and build public constituencies for the courts and
thereby ‘‘lock in’’ the formal concessions to judicial independence the
politicians may have been forced to grant (p. 35).
Widner compels us to broaden our conception of judicial agency beyond a
conventional and exclusive focus on a judge’s doctrinal influence. As she
observes, ‘‘[t]he stereotypical image of a court usually depicts judges as
having no agency outside of the decisions they write’’ (p. 138). Indeed, when
one speaks of ‘‘judicial activism’’ or of a judge as ‘‘activist,’’ one is commonly
understood—both within the academic and professional legal community
and without—to mean a judge who, without due deference to the political
branches, seeks to achieve her preferred ideological or sociopolitical outcome
by influencing the evolution of legal doctrine through case law. Francis
Nyalali, and the other judges whom Widner describes, did not quite fit this
conventional description of the judicial activist. In fact, most of Africa’s
common law lawyers and judges may be said to have a certain trained
fidelity to legal positivism.20 Consequently, African judges have generally
demonstrated a restrained approach to textual, including constitutional,
interpretation.21
As a jurist, Nyalali was, no doubt, more adventurous doctrinally than
the average African judge. As Widner notes, he authored ‘‘some important
and very distinctive opinions’’ (p. 400),22 implored judges to be mindful of
19
‘‘In the West, independent courts and multiparty politics frequently developed in tandem.’’
20
See generally H. Kwasi Prempeh, A New Jurisprudence for Africa, in THE GLOBAL DIVERGENCE OF
DEMOCRACIES 260 (Larry Diamond & Marc F. Plattner eds., Johns Hopkins Univ. Press 2001).
21
22
Id.
Widner mentions, for example, Nyalali’s judgment in Bi. Hawa Mohammed v. Ally, where,
reversing a lower court ruling, he ‘‘counted a spouse’s domestic services—cooking, cleaning,
and caring of children—as contributions to the assets of a married couple and therefore as claims
on those assets upon dissolution’’ (p. 341).
600 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
H. K. Prempeh
policy implications in deciding cases (pp. 185–186), and advocated a
liberal-oriented homegrown jurisprudence rooted in the publicly expressed
aspirations of Africa’s founding generation.23 Still, Nyalali’s major influence
and his impact as institution builder and social engineer was accomplished
off the bench, through his direct and strategic engagement with politicians
and other publics, not through doctrinal activism. Notably, when Nyalali
became convinced that Tanzania’s one-party system was no longer tenable
and that continued judicial enforcement of certain outdated and illiberal
statutes might harm the public standing of the courts, he intervened directly,
if privately, with politicians to press for constitutional or legislative reform. A
conventional judicial activist, provided the opportunity, might have used his
position as jurist to author an oppositional jurisprudence—for example, by
interpreting the Tanzanian Constitution’s guarantee of ‘‘freedom of
association’’ to disallow a de jure one-party state. Nyalali, however, shunned
the path of collision (p. 177), preferring to use moral suasion instead. As he
recalled, he ‘‘[used] every encounter with a political leader to make a point
about how the courts worked and about law reform priorities’’ (p. 191).
Nyalali’s extrajudicial interventions were rewarded when he was
appointed to head a presidential commission ‘‘to inquire whether the
majority of Tanzanians preferred the continuation of a single-party system or
the establishment of a multiparty system.’’24 The Nyalali Commission, as it
became known, recommended that Tanzania abandon the de jure one-party
state in favor of a multiparty system, despite the fact that a majority of those
who made oral or written submissions to the commission expressed a
preference for the status quo.25 The commission further recommended the
repeal of several pieces of legislation so that an environment conducive to a
free and competitive political system might emerge. The government’s
subsequent acceptance of the Nyalali Commission’s primary recommendations paved the way for Tanzania’s eventual transition to democratic politics
in the early 1990s.
23
Nyalali urged African judges doing constitutional interpretation to look to ‘‘the principles and
values which underlay the African liberation struggle and the birth of our nationhood.’’ The
mobilizing rhetoric behind the African anticolonial struggle articulated publicly at the time by
Africa’s founding fathers stressed the universality of the ideas of ‘‘democracy,’’ ‘‘human
dignity,’’ ‘‘equality,’’ and ‘‘liberty.’’ Although Nyalali was aware that practice had not followed
principle upon the attainment of independence, he still argued that these publicly expressed
principles constituted the ideals and values upon which the African state had been conceived
and founded and, thus, represented a ‘‘Framers’ Intent’’ of sorts to which judges must look for
normative guideposts in their quest for a homegrown African jurisprudence. Situating
constitutional interpretation within the ‘‘nationalist vision’’ also made it ‘‘awkward for leaders
to renege’’ (pp. 183–194).
24
Mwesiga Baregu, Tanzania’s Hesitant and Disjointed Constitutional Reform Process (2000),
available at www.eldis.org/fulltext/baregu.pdf (last visited October 11, 2005).
25
Id.
601
African judges, in their own cause
Widner notes that Nyalali saw himself in the mold of U.S. Chief Justice
John Marshall (p. 99). Here, however, the parallels are overdrawn. As
judicial chieftains, both Marshall and Nyalali were undoubtedly consummate institution builders and political judges. Marshall’s introduction of the
‘‘Opinion of the Court,’’ in place of the long-standing English practice of
seriatim opinions, as well as his early push for consensus on the Supreme
Court, significantly enhanced the court’s institutional stature.26 Even so,
Marshall’s imprint on American politics and constitutional government was
effected principally through judicial doctrine and case law, Marbury,27
McCulloch,28 and Hunter’s Lessee29 being the most enduring of his doctrinal
legacies. Although he would occasionally enter the public fray to defend
himself and some of the Court’s most controversial judgments and holdings
against assault by his detractors,30 it is telling that Marshall, sensitive to the
constraints and expectations of his office, pursued such off-the-bench
interventions under a pseudonym.31
Like Marshall, Nyalali cultivated, fairly early in his tenure as chief justice,
a strong base of support within the court system and counted on that
resource to underwrite his later reform project. In contrast to Marshall,
however, Nyalali’s forays into the political realm were purposefully direct,
and it was primarily through such engagements, not case law, that he
exerted his influence and impact.
Nyalali’s strategic engagement with the political class in pursuit of
systemic reform exemplifies a new model of judicial activism that should
cause us to reexamine our widely held assumptions about the propriety of
judges stepping out of their robes to advance a political reform agenda. The
conventional definition of the judicial role, at least within the AngloAmerican common law tradition, confines judges to adjudicating ‘‘cases or
controversies.’’ Thus, in the United States, for example, federal judges will
not render an ‘‘advisory opinion’’ to the government or, for that matter, to
any litigant. Indeed, judicial independence, as defined within this tradition, is
supposed to require of judges a certain distance or detachment from politics
and politicians. Even mere appearances to the contrary are frowned upon,
26
See generally R. KENT NEWMYER, JOHN MARSHALL
(Louisiana State Univ. Press, 2001).
AND THE
HEROIC AGE
OF THE
SUPREME COURT
27
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (establishing authority of federal courts to
determine constitutionality of federal legislation).
28
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (adopting expansive reading of
federal legislative power vis-à-vis the states).
29
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) (establishing federal Supreme
Court’s power to review state court judgments resting on interpretation of federal law).
30
NEWMYER, supra note 26, at 322–385.
31
Id.
602 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
H. K. Prempeh
and judges who breach this norm invite accusations of improper influence or
‘‘telephone justice,’’32 as demonstrated by the adverse reaction to revelations
that Justice Abe Fortas privately advised President Johnson on matters of
policy or, more recently, to Justice Antonin Scalia’s close ‘‘social’’ ties with
Vice President Cheney.
Yet, as Nyalali’s counterexample also demonstrates, what may be
inappropriate conduct for a judge in a politically competitive, mature
democracy with a rights-assertive public may not be improper or problematic
in a less-than-open political system, where public demand for courts is low.
In the latter setting, judges might risk even greater social irrelevance if they
remain wedded to a passive conception of the judicial role, expecting legal
change to come principally through episodic litigation or the unlikely
initiative of an intransigent political class.
The possibility of Nyalali-style judicial activism adds an interesting new
dimension or perspective to the age-old dilemma that confronts judges who
must serve in a regime of illiberal or oppressive laws.33 What is a judge to do
under those circumstances who feels torn between duty to the law and the
stirrings of personal, albeit publicly oriented, conviction? The judge’s
dilemma in such cases has commonly been framed in bipolar terms as a
choice between dutifully enforcing the law and resigning in protest. But, as
Mary Dudziak observed in an earlier review of Widner’s book, Nyalali’s
example shows the possibility of a ‘‘third path,’’34 one that would involve the
judge’s stepping outside his formal adjudicatory role and taking his case
directly to the political process and other public constituencies.
This third path is illustrative of the concept of ‘‘voice,’’ as described by
Albert Hirschman in his classic work, Exit, Voice and Loyalty.35 Hirschman
defines voice as ‘‘any attempt at all to change, rather than to escape from, an
objectionable state of affairs, whether through individual or collective
petition to the management directly, through appeal to a higher authority in
charge with the intention of forcing a change in management, or through
various types of actions and protests, including those that are meant to
mobilize public opinion.’’36 Voice thus becomes one more option, and an
alternative (or complement) to ‘‘exit’’ or ‘‘acquiescence.’’37 Hirschman
32
This term, commonly used in contemporary accounts of the Russian judiciary, describes a
Soviet-era practice whereby judges received instructions from the Communist Party or the KGB
before issuing judgments.
33
Dudziak, supra note 5, at 1624.
34
Id.
35
ALBERT O. HIRSCHMAN, EXIT, VOICE AND LOYALTY: RESPONSES TO DECLINE
STATES (Harvard Univ. Press 1970).
AND
36
Id. at 30.
37
Id. at 31.
IN
FIRMS, ORGANIZATIONS,
African judges, in their own cause
603
proposes recourse to voice as a rational and strategically effective option,
especially where there is also present ‘‘that special attachment to an
organization known as loyalty.’’38 Thus, for Nyalali, who saw himself,
correctly, as a loyal member of the ruling class, voice must have appeared—
and indeed proved—preferable to exit or acquiescence as a way to engineer
and facilitate change and reform from within. Indeed, in a legal and political
culture dominated by positivism and a tradition of executive or legislative
supremacy, proactive deference (voice) of the kind exemplified by Nyalali has
much to commend it, at least as a transitional strategy, and likely has better
prospects of success than doctrinal judicial activism.
Obviously, voice is not an option open to every judge. But for a judge in
Nyalali’s position, as an institutional leader who recognizes the need for
systemic reform and commands a reservoir of respect and influence—and
thus political capital—within an illiberal regime, the conventional notion that
a judge trades a voice in the halls of politics for a vote on the bench, probably
represents an uninspiring dead end. For that judge, the more natural or
rational impulse is best captured, perhaps, by Robert Cover’s admonition: ‘‘It
is a waste to refuse to use accessible power for a good purpose.’’39
However, in focusing on the institutional aspects of judicial independence
and presenting judicial leaders as a likely force for good in this regard,
Widner overlooks an important adverse possibility, namely, that a powerful
and political chief justice might use her influence to manipulate the decisional
independence of her peers on the apex court or further down the judicial
hierarchy. Such vertical threats to judicial independence have been
observed, for instance, in the Japanese judiciary.40 The danger is far from
remote in common law Africa where chief justices wield considerable
authority and power within their judicial systems. As the administrative
head of the judiciary, the African chief justice has plenary authority over a
wide range of decisions affecting the career and comfort of fellow judges.
These range from geographic transfers, allocation of office space, housing,
discipline, and even case assignments. Moreover, where the apex court hears
cases in panels rather than en banc, it is usually the chief justice who singlehandedly determines the composition of each panel. This power to choose
which judges will hear a particular case is plainly one that is liable to abuse,
as it enables the chief justice to engage in ‘‘forum shopping.’’ The risk of such
abuse is arguably greatest where the chief justice has exceptional influence
with the political class. Nyalali, by Widner’s account, was an exemplary
38
Id. at 77.
39
ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 158 (Yale Univ. Press
1975).
40
See David M. O’Brien & Yasuo Ohkoshi, Stifling Judicial Independence from Within: The Japanese
Judiciary, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY: CRITICAL PERSPECTIVES FROM AROUND THE
WORLD 37 (Peter H. Russell & David M. O’Brien eds., Univ. of Virginia Press 2001).
604 Int’l J Con Law, Vol 4, No 3 (Jul 2006)
H. K. Prempeh
leader in this regard, but one can well imagine others using such power and
influence for less desirable ends.
Institutional reform that is driven largely by the force of a particular
reformer’s personality is, of course, vulnerable to doubts about its longevity
or durability beyond the term or life of that individual. Indeed, despite the
best efforts of Nyalali and others like him progress toward judicial
independence in Africa, as elsewhere, has not followed a consistent or
linear trajectory. Considerable obstacles and challenges continue to bedevil
African judiciaries,41 and, in some instances, judicial independence has
suffered reversals after making initial gains. Although Widner’s narrative
leaves the reader feeling a sense of inexorable progress, it is important to
emphasize that, even in the most auspicious circumstances, ‘‘judicial
independence is never a condition that is fully established,’’42 it is never
completely ‘‘locked in,’’ not least because politicians never relent in their
desire or attempts to interfere with the independence of the courts. For this
reason alone, if for no other, Chief Justice Nyalali must be considered a judge
for all seasons.
4. Conclusion
As a descriptive project, Widner’s account is necessarily limited in its
generalizability, even in the African context—and Widner does not suggest
otherwise. In important respects, Nyalali might be considered sui generis. For
one thing, his tenure as chief justice, spanning a period of over twenty-four
years, is exceptionally long by African standards. Other chief justices have
not been nearly as fortunate or, for that matter, as confident or willing to
entertain a conception of their role beyond the merely technocratic.
But Widner’s project is far from being merely descriptive or historical. One
can easily discern, not least in the very approving tone with which she
recounts the experiences of Chief Justice Nyalali and his regional peers,
Widner’s own normative, forward-looking preference for a strong, indeed
activist, role for judges, and especially for the sort of judicial leadership that
fosters and builds independent courts. Widner’s approbation of such judges
extends not just to their formal role as adjudicators but, more importantly, to
their managerial and political roles, where they must lead the way in
reforming and cultivating social legitimacy for the courts. By identifying the
difficult and problematic areas along the path to judicial independence,
Widner also lays out a clear agenda for judge-led reform in the
administration of justice in the new democracies of Africa and elsewhere.
41
Siri Gloppen, The Accountability Function of the Courts in Tanzania and Zambia, in DEMOCRACY AND
112–136 (Siri Gloppen, Roberto Gargarella & Elin Skaar eds., Frank Cass 2004).
THE JUDICIARY
42
Peter H. Russell, Judicial Independence in Comparative Perspective, in JUDICIAL INDEPENDENCE IN THE
AGE OF DEMOCRACY, supra note 40, at 301.
African judges, in their own cause
605
In choosing to combine, in one book, historical narrative, biography, and
theoretical and comparative perspectives, and about a subject—African
courts and judges as strategic political actors—that is grossly understudied,
Widner took upon herself an ambitious and challenging project. While the
compression into a single book of such a vast amount of material of a
multifaceted nature does not conduce to easy reading, in the end, Widner is
remarkably successful in her endeavor. Beyond its obvious value as
scholarship, Building the Rule of Law offers legal policy specialists, chief
justices and political and constitutional reformers prescriptive insights that
should serve as valuable guideposts for building democratic constitutionalism in Africa and other emerging democracies.