Independence Of The Judiciary And The African Bar – By SAMSON R. OSAGIE
This was not unexpected, as the gathering of Lawyers across the continent could not have glossed over the issue of the independence of the Judiciary in Africa. Coming on the heels of one of the most atrocious exhibition of disrespect for the rule law by the Government of Zambia, whose President, Hakainde Hichilema recently suspended three Constitutional Court judges – Anne Sitali, Mungeni Mulenga, and Palan Mulonda, purportedly acting on a recommendation from the Judicial Complaints Commission (JCC), the African Bar Association deliberated extensively on the state of the judiciary in Africa citing examples of so many countries where the judiciary has been violated and its independence compromised particularly by the executive branch of government.
The debate in which senior judges and jurists across Africa, senior legal practitioners, legal scholars and writers participated ended up with a deprecation of the erosion of judicial independence in Africa.
The judiciary’s role in a democracy is to protect individual rights, promote equality, and ensure that the rule of law is upheld, but it can only perform this role if it is allowed to act independently without any interference from any other institutions or arm of government.
This principle is the fundamental basis of the doctrine of separation of powers as propounded by Baron De Montesquieu in the Spirit of the Laws (1748) in which he argued that the best form of government is “one in which the legislative, executive, and judicial powers were separate and kept each other in check to prevent any branch from becoming too powerful”.
He argued further that “The judicial powers ought not to be given to a standing senate; it should be exercised by persons taken from the body of the people at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires”. Thus to him “Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers.
In Africa today, even with the adoption of democracy with its intrinsic attributes of respect for the rule of law as a way of guaranteeing justice and freedom for the citizens, governments have consistently undermined the judiciary at the expense of the citizens. In TORRES v. TEXAS DEPARTMENT OF PUBLIC SAFETY [2022], the United States Supreme Court affirmed state’s sovereignty and the independence of the Judiciary in the United States federalism contexts.
In Nigeria, the Supreme Court in ELEHU HABEEB v. ATTORNEY GENERAL OF THE FEDERATION & OTHERS the governor of Kwara State of Nigeria acting on a resolution of the state house of assembly removed from office the Chief Judge of the State, the Supreme Court held that the removal was illegal and constituted an interference with the judiciary particularly as it was not recommended by the National Judicial Council. That means that the Judiciary has been seeking the protection of its own independence outside the protection offered by the Constitution and other legislations in that regard.
Despite these efforts, Africa judicial system has continued to grapple with increasing erosion of its independence with the result that citizens now openly express lack of confidence in the Judiciary.
Over the years the judiciary has remained the butt of the executive interference. Examples abound. In South Africa, Judicial independence was grossly compromised by executive interference, particularly under former President Jacob Zuma.
In Nigeria, judicial Corruption and executive influence have undermined judicial effectiveness.Justices of superior courts are constantly harassed and compromised to giving verdicts that undermined the law and justice.
In Egypt, the judiciary has faced significant challenges, including executive control and security threats. Kenya, in East Africa has its former President Uhuru Kenyatta in 2017, openly criticized the Judges after his Presidential election victory was annuled by the Court. Even though the judiciary has made significant strides in protecting its independence, it still faces a lot of challenges, including corruption and executive interference. In Malawi, President Peter Mutharika attempted to remove the Chief Justice of Malawi, Andrew Nyirenda, after the Supreme Court annulled Mutharika’s election victory and ordered a re-run. The move was widely criticized, and the Malawian High Court judges granted injunctions preventing the removal.
Executive interference with the judiciary is a serious concern in Africa, undermining the independence and effectiveness of the judicial system.
These few examples demonstrate the need for continued vigilance and support for judicial independence in Africa.
This is where the African Bar Association took the bull by the horn in addressing the issue at its recently held Conference in Lusaka. It’s resolution among other things include but not limited to: a. That the Africa Bar Association condemns the consistent interference by the executive branch of government in the affairs of the judiciary in all African countries b. That the various governments across Africa continent particularly, the government of Zambia should immediately reinstate the suspended judges and stop interference with the functions of the judges in the continent.
These resolutions speaks to the very heart of the challenges the judiciary faces in the continent of Africa that has eroded its independence. Apart from executive interference, the judiciary in Africa faces the problems of corruption, inadequate funding, security threats, insufficient capacity of judicial officials, inherited colonial legal frameworks and absence of technological impact in the justice administration system.
Thus, the African Bar Association need not be content with passing resolutions but must engage the governments of countries that have become notorious in trampling on judicial independence through the various law societies and offices of the Attorneys General.
These efforts must be the challenge before new new leadership of the AfBA which took over the reins of authority at the close of this year’s conference.
It is remarkable to note that the resolutions on judicial independence and others taken at the rule of law session presided over by Mr Hannibal Uwaifo marked the end of his tenure in the Presidency of the African Bar Association and without any doubt the Chief Ibrahim Eddy-Mark Presidency of the continental professional body will have an abiding responsibility of marching actions with words in this all important task of rescuing our continent from the flagrant abuse of the rule of law and deliberate erosion of the independence of judiciary. This role of the Africa Bar can be achieved through advocacy by championing judicial independence and creating public awareness campaigns not only at annual conferences but at regular intervals in different fora, Capacity Building through collaboration with judicial training institutions to enhance capacity; monitoring through the establishment of mechanisms aimed at judicial independence and reporting of violations and supporting constitutional and Judicial reforms through engagement with governments,development partners and policymakers to promote such reforms.
In the final analysis, it can bear reiteration that the independence of the judiciary remains the cornerstone of every democratic governance and necessary for ensuring that the rule of law prevails and citizens’ rights are protected.
Dr. Osagie, a Nigerian Legal Practitioner and Vice President of the African Bar Association (West African Region) writes from Lusaka, Zambia
