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> Speeches and Statements
| Towards an independent and effective judiciary in Africa by
The Hon. Mr. Justice A. M. Akiwumi Chairman of the Tribunal to Investigate
the Conduct of Judges of Appeal in Kenya The Independence of the Judiciary in Africa The topic of the independence of the judiciary is obviously a vast and complicated one. But this should not discourage one from investigating the matter further. After all, the independence of the judiciary is central to the administration of fair and equal justice in a democratic society. This paper can do no more than survey the broad issues involved, and draw attention to certain problems, as well as point to possible solutions. The idea of the independence of the judiciary as it now presents itself, is a modern one. If we go back in history, we shall generally find that, although the notion that justice should be fairly administered may well have been accepted, those who adjudicated or settled cases were not expected to be in any real sense "independent". Thus in medieval England, from whose common law most of the African Commonwealth countries have derived their own national legal systems, justice was a royal prerogative, which the ruler carried out through his appointed officials or justices. As such, not only was there no separation of powers, but those who judged were agents of those who ruled; while in theocratic societies, such as those where Islam was the state religion, judges had to conform to the dictates of the sacred law, as expressed in the Sharia and the Sunna. The same observations apply to societies with customary legal systems. The independence of the judiciary which is well enshrined in the constitutions and constitutional jurisprudence of African Commonwealth countries, is linked to, and derives from, two seminal principles: the separation of powers; and the rule of law. It is all very well to say that Montesquieu, writing in the 18th century, was mistaken when he identified separation of the legislative, executive and judicial powers as the cardinal feature of the then British Constitution. However, his misreading, if it was such, has proved self-validating, in that modern constitutions, starting off with that of the United States, have been generally premised on the notion of separation of powers. So much so that the independence constitutions which Britain offered to its ex- colonies, or which the newly independent countries enacted for themselves, are almost without exception based on this principle. This means theoretically, that the three arms of the government, the legislature, the judiciary and the executive, should be clearly separated from each other, and that each should operate independently of the others. This theory is, however, not easy to achieve. The independent role of the judiciary is proclaimed in the constitutions of many African countries. But is this sufficient to guarantee the independence of the judiciary? Some of the assertions of the role and independence of the judiciary are the following:
The independence of the judiciary, is also recognized in francophone African countries, as an essential element to the impartiality of justice. In a paper headed -"INDEPENDENCE OF THE JUDICIARY" by His Excellency Mr. Alfonse Boni, former Chief Justice of Ivory Coast, and presented at the United Nations Economic Commission for Africa Conference on African Legal Process and the Individual, Addis Ababa, 1971, Chief Justice Boni stated that:
Constitutional provisions may not .by themselves ensure the independence of the judiciary. The role of the Chief Justices and Presidents of Constitutional Courts is to ensure the independence of the judiciary. This role, however, requires someone who is eminently independent and who can put his mark on the image of the judiciary and the legal system. Although in England, the judges of the High Court, Court of Appeal and the House of Lords are appointed on merit and not because of political affiliation, by the Queen upon the recommendation of the Lord Chancellor, a political appointee of the Prime Minister, the independence of these judges in the performance of the duties, has become well established in the modern legal system of England. But the independence of the judiciary does not mean that a judicial officer is free to act as he pleases. He must be contained by, and follow, existing laws and procedures and Practice Directions. However, adjudication by judicial officers is not merely mechanical; it also involves the exercise of discretion. And so to interfere with a judge's decision merely because he or she has in the exercise of his or her discretion, passed a sentence or taken a decision with which the Chief Justice, Attorney-General, public opinion or the affected party may disagree, could be a breach of judicial independence. But what should be the limits of this discretion? What is in issue therefore, cannot be the absolute independence of the judiciary, but its relative independence which means the protection of judges "from improper or unlawful influences, direct or indirect, on the way in which the judicial officer -carries out his/her judicial functions." What is improper influences, may even change with time. In addition to the foregoing remarks on the independence of the judiciary, it is necessary to draw attention to the judicial privilege arising from such independence and which are applicable within common law Commonwealth countries. This privilege as summarised in paragraphs 206 -210 of Halsbury's Law of England, Fourth Edition, are as follows:
Generally, the position of judges of African Commonwealth countries, who are not treated as civil servants, and whose emoluments are protected by being charged on the Consolidated Fund, have been specifically safeguarded by the constitutions of some of these countries. In order to exempt the remuneration of judicial officers from being the subject of parliamentary debate, section 128 (5) of the Uganda Constitution for example, provides comprehensively, that:
The position is less straight forward in Kenya. The Constitution of Kenya provides in section 104, that:
The Act of Parliament which prescribes the salaries and allowances of the judges of Kenya, is the Constitutional Offices (Remuneration) Act, whereunder, the President of Kenya prescribes the emoluments of constitutional office holders, such as judges. But so long as judges are appointed, paid, promoted, or removed from office by persons or institutions controlled directly or indirectly by the Executive, the judiciary's independence may be more theoretical than real. There are provisions in the constitution of many African countries like Ghana, Kenya, Uganda, Zambia, Namibia and South Africa, for the establishment of a Judicial Service Commission which recommends or nominates those to be appointed as judges by the Executive. The composition of the Judicial Service Commission, which is intended to be impartial and free from Executive interference or influence, is not only composed of judges and members of the legal profession. In addition to these judicial and legal professional personages, there are in some cases, representatives of civil society. There are also appointees of the Executive, for instance, the Chairman of the Civil Service Commission, an Executive appointee, is also, under the Constitutions of Malawi and Kenya, a member of the Judicial Service Commission. And another member of the Judicial Service Commission of Kenya and Namibia as provided under the Constitutions of these two countries, is the Attorney- General who in these two countries, is ex officio the legal adviser of the government and in Kenya, a member of the Executive cabinet as well. -The Constitution of the Republic of South Africa provides more elaborately, in section 178(1), that the Judicial Service Commission shall consist in addition to judges and legal practitioners, of:
The membership of the Chairman of the Civil Service Commission, the Attorney-General and the "Cabinet member" responsible for the administration of justice, persons "designated by the National Assembly" and persons designated by the "President as head of the national executive", of a Judicial Service Commission, does not make such a body entirely free from executive or political influence. Whilst the fact that some of these persons are ex officio, members of the various Judicial Service Commissions, Presidential appointees, and in some cases, like the Attorney-General, enjoying the security of tenure, would seem to balance the power of the President over a Judicial Service Commission, the fact that they are appointed to their respective offices, and as members of the Judicial Service Commissions, by the President, may well make the Judicial Service Commissions to be creatures of the respective Presidents. Whilst in Kenya for instance, the Chief Justice shall, in accordance with sections 61 and 64 of the Constitution of Kenya, be appointed by the President, and other judges appointed by the President acting in accordance with the advice of the Judicial Service Commission, the -position is rather different in South Africa. The more elaborate provisions of section 174 of the Constitution of South Africa gives more discretion to the President in the appointment of the President and Deputy President of the Constitutional Court and the Chief Justice and Deputy Chief Justice. The relevant provisions which reflects post apartheid idealism, and. which also ensures fair gender and racial distribution of judicial positions, are the following:
The Constitution of Egypt of 1971, had provided for a Supreme Council of Judicial Organizations for the appointment of judges. This occasioned considerable controversy as it included Executive appointees and seemed to remove some of the Egyptian judiciary's hard-won autonomy. However, in 1984, the Supreme Council of Judicial Organizations was replaced by the Supreme Judicial Council which consists entirely of judges or judicial personnel, making the Egyptian Judiciary one of the most independent in the Arab world. Commenting about the appointment of judges or "magistrates", in the French-speaking African countries, Chief Justice Boni in his paper INDEPENDENCE OF THE JUDICIARY, had this to say:
The role of the Executive in the removal of judges from office is an important issue. In this regard, I will dwell on the related constitutional provisions in African Commonwealth countries. In Namibia as already recounted, a judge may be removed from office by the Executive upon the recommendation of the Judicial Service Commission having first investigated whether a judge should be removed on the ground of "mental incapacity" or "gross misconduct". The role of the Malawian Judicial Service Commission is somewhat different. A judge may be removed from office by the President in consultation with the Judicial . Service Commission after the removal of the judge from office on the grounds of incompetence or misbehaviour, has been debated and passed by the parliamentary National Assembly. Similarly in South Africa, a judge may under section 177 of its Constitution, be removed from office only if:
In Nigeria, the removal of judges from office is distributed in section 292(1) of the Constitution of Nigeria, between the Senate, the House of Assembly and the National Judicial Council, in this way:
However, in Zambia and Zimbabwe, for instance, if the President considers that the question of removing a judge ought to be investigated, he will appoint a tribunal to inquire into the matter and whose recommendation shall be acted on, by the President. Under article 144 of the Ugandan Constitution, the President shall remove a judicial officer if the tribunal consisting of judges and legal practitioners, appointed by the President to investigate the conduct of the judicial officer, recommends that he should be removed. Apart from the Judicial Service Commission, the Cabinet which includes the President, may also recommend to the President, the establishment of the tribunal -to investigate the judicial officer. The procedure in Ghana is more complicated and also gives the Executive who may appoint as members of the investigative committee, persons who are not judges or legal practitioners, more indirect influence in the role of the investigative committee, though he shall, "act in accordance with the recommendations of the committee.". It is provided in article 146 of the Constitution of Ghana as follows:
The lack of executive interference in the proceeding for the removal of a judge from office and which reinforces the doctrine of separation of powers, is more clearly expressed in the Constitution of Kenya. The President has no independent power to remove judges which can only be done by a tribunal composed of retired or active judges and senior legal practitioners, appointed by the President, and which the President can only do, if the Chief Justice represents to the President that the question of removing a judge from office, should be investigated. Apart from the discretion that the President has in the selection of the members of the tribunal, he is given no discretion in accepting or rejecting the recommendation of the tribunal. Indeed, where the affected judge has been suspended by the President upon the advice of the Chief Justice, the suspension, in accordance with section 62(6) of the Constitution of Kenya:
Chief Justice Alfonse Bone summarises the position in francophone African countries as follows:
The legislature makes the law which may also entitle administrative bodies to make subsidiary legislation. The judiciary is there to implement and apply them. For the judiciary to refuse to apply such laws would betray their duty under the rule of law principle to faithfully apply the laws rather than their own prejudices or convictions ("a Government of Laws, rather than of Men"), and would in practice, mean that the judges had become the legislators. One might therefore conclude that it is the legislature's will which is to prevail. French-speaking African countries, like Commonwealth African countries, generally distinguish between constitutional provisions and statutory law. The principles and rules stated in constitutions, have a special legal authority. But both constitutional and statutory laws will only receive their full application when interpreted by the courts and -what. they mean and how they are to be applied, will depend on the interpretation that the courts will give to them; and which will not be in favour of the Executive whether or not the wording sufficiently expressed the intention of the law. This judicial control of legislation is felt more generally with respect to the interpretation of constitutional provisions or those dealing with human rights. However, the majority of francophonic African countries have entrusted constitutional determinations to the supreme court or to a special tribunal. The French public law jurists fear to leave constitutional determination to ordinary judges, as in the Commonwealth legal system. The constitution of the French Fifth Republic clearly demonstrates the fear of what has been called "government by judges". This fear, appears still to have intimidated the drafters of the francophonic African Constitutions.. The existence of supreme courts as such, appears to support the Commonwealth and American legal systems. But the composition and jurisdiction of these courts suggest that the French principle of denying to the ordinary judge powers to determine constitutionality of laws has been rigorously observed. These francophonic African supreme courts are generally not composed exclusively of members of the judiciary, especially on those occasions when the courts are called to pass judgment on the constitutionality of laws. Also, a determination of constitutionality is reached before the promulgation of the law. In francophonic African countries, the determination of the constitutionality of legislation is exercised by the constitutional chamber of the supreme court. The membership of this chamber varies from country to country. Constitutional determinations in Senegal do not appear political. Constitutional questions are heard by the supreme court, that is, the President, the president of each chamber, and the four conseillers (justices). Each of the judges is a career member of the judiciary, appointed for life, and protected by the rule of irremovability. The same, however, cannot be said of other francophone African countries where the political nature, as opposed to the judicial qualifications, of the constitutional chamber, is very pronounced. In Togo, the President of the Supreme Court is named for five years and is joined, on constitutional questions, by two individuals, one named by the Head of State and the other by the President of the National Assembly, each for a period of one year (Loi of August 16, 1961, Loi of March 14, 1962 and Loi of October 31, 1964). The legal qualifications of the members of the court do not seem important: at one time, one of the presidents of the supreme court was a medical doctor. In the Ivory Coast, the constitutional chamber of the Supreme -Court differs fundamentally from other courts in its composition. This chamber is headed by the President of the Supreme Court appointed for five years by the Head of State on the advice of the President of the National Assembly. Although he must possess competence in legal and administrative matters (Loi 62-201 of June 2, 1961 or relative to the supreme court), the manner of appointment and his temporary term mark him "incontestably as a political personage. He is assisted, to be sure, by thee magistrates of the Supreme Court but also by at least four political appointees, to which will be added, if necessary, the former Presidents of the Republic. The four political appointees are also named for a term of five years, two by the Head of State and two by the President of the National Assembly. (In the past, these appointees have included an inspector of tax and a medical doctor as well as a law professor and a judge). Only three members of this court are irremovable and may be considered to be independent of the legislature or the executive. The Constitution of the Democratic Republic of Congo establishes a constitutional court which may determine the constitutionality of laws as well as other matters. This court is composed of nine members appointed for a period of nine years by the chief of State, one-third by his own initiative, another third on the suggestion of the National Assembly, and the final third on the suggestion of the Supreme Judicial Council (Constitution, Art. 70). In certain francophone African countries constitutional control has been entrusted to a body which is completely and officially political. The Constitution of 1964 in the Central African Republic provided for the existence of a Constitutional Council, which pre-empted jurisdiction from the Supreme Court on constitutional questions. This Council included the Minister of Justice as president, two members (one of whom must be a judge) appointed by the Head of State and two members appointed by the National Assembly. The court term corresponded with that of a parliamentary session (Loi otJuly 8, 1961). In Malagasy, a High Council of Institutions (Constitution, Articles 46 and 64) was created. Of its five members, who serve for a term of seven years, two are appoInted by the Head of State, two by the President of the National Assembly, and one by the President of the Senate. In addition, former Presidents of the Republic will also be members of the Council. Many African Commonwealth countries have endowed themselves with fundamental rights provisions in their written constitutions. These allow or require the courts to review legislation for conformity with the fundamental rights provisions, and to strike down laws which fail to conform to them. The related Chapter of the Constitution of Kenya, Chapter V, is headed -"Protection of fundamental Rights and Freedoms -of the Individual". Section 70 of this Chapter is as follows:
The relevant provisions of the Constitution of Uganda which are less adamant are the following:
The relevant provisions of the Constitution of Egypt are the following:
The Supreme Egyptian Constitutional Court is an independent judicial body that has jurisdiction over matters of constitutional interpretation. The Court receives cases referred to it by other courts when there is a question regarding the constitutionality of a law, regulation, or administrative decision. Its decisions are final and binding on all official bodies. The Court also may offer constitutional interpretations when requested by certain official actors and it also plays a role in cases when there is a clash of jurisdiction among judicial bodies. The existing discrepancies already illustrated demand reconciliation in order to make the role of the judiciary in Africa, as a whole, an independent and effective arm of government. In this respect, attention must be given to related issues concerning existing African regional courts, and to the possibility of having a conference of African judges to make suitable proposals. The Protocol of the Court of Justice of the African Union, establishes an international court, which as the principal judicial organ of the African Union, is mainly to settle disputes relating to the interpretation and the application of the Constitutive Act of the African Union, and related matters. According to the Protocol, "The independence of the Judge shall be fully ensured in accordance with international law", and the "judgments of the Court shall be binding on the parties and in respect of the particular case". Notwithstanding this provision, the decisions of the "Court in the interpretation and application of the (Constitutive) Act shall be binding on Member States and organs of the Union ...". However, where a party fails to comply with a judgment of the Court, the matter may be referred rather to the Assembly, the supreme executive organ of the Union, composed of Heads of State and Government or their duly accredited representatives, for the imposition of sanctions. The sanctions which may be imposed are described in paragraph 2 of Article 23 of the Constitutive Act, as:
The role of the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA) in this respect, needs to be briefly summarised. The COMESA Court is to ensure the maintenance of the Rule of Law within COMESA through the just resolution of disputes and thereby facilitate and strengthen economic integration that would augur well for the enhancement of trade efficiency, cost effectiveness and resultant general socio-economic well being in the COMESA region. Under Article 31.1 of the COMESA Treaty, the COMESA Court shall determine every Reference made to it under the COMESA Treaty and shall deliver its judgment which, subject to review by it, shall be -final. Also to emphasize the independence and supremacy of the COMESA Court in the exercise of its jurisdiction, Article 34.2 and 3 of the COMESA Treaty, impose on Member States the duty to refrain from any action which might be detrimental to the resolution of a dispute before the COMESA Court, or which might aggravate the dispute, and also to take without delay, the measures required to implement the judgment of the COMESA Court. Another important power granted to the COMESA Court under Article 34.4 of the COMESA Treaty relates to right of the Court to impose on a party who "defaults in implementing the decision of the Court", such financial penalty as it considers necessary. Whilst for instance, the Partner States of the East African Community are all countries in which the English common law is applied, a different situation applies to the COMESA Court. The legal jurisdiction of the Member States of COMESA namely, Angola, Burundi, Comoros, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Madagascar, Malawi, Mauritius, Namibia, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe, vary a great deal. The national courts of Kenya, Uganda, Malawi, Seychelles, Zambia and Zimbabwe for instance, apply the English common law; the national courts of francophone Member States such as Rwanda, Burundi, the Democratic Republic of Congo and Madagascar apply the continental judicial system; the national courts of Arabic speaking Egypt and Sudan apply a different system of law and so do the national courts of Ethiopia and Eritrea which are all Member States of COMESA. The COMESA Court has brought together persons of differing legal traditions to produce a smooth-functioning and authoritative institution, which is a great asset to the largest economic bloc in Africa. As regards conferences to be attended by African judges, a conference of the Chief Justices of the East African countries of Kenya, Uganda and Tanzania, was held in Mombasa only in October, 2004. In November, 2003, a conference of Chief Justices from English speaking African countries, was convened by the United Nations Environmental Programme in Nairobi, to evaluate the role of their courts in the maintenance and sustainability of the environment. Francophone judges have also held meetings relating to common judicial issues. A conference of Chief Justices from all-African States, and where varying legal systems as already described, are applied, would be a useful forum for the establishment of a harmonized independent and effective judiciary in Africa. The 6th Conference of Chief Justices of Asia and the Pacific, was held at Beijing in August, 1995 and attended by Chief -Justices or their representatives from the following varying jurisprudential backgrounds -Australia, Bangladesh, China, Hong Kong, India, Indonesia, Mongolia, Mayan mar (Burma), Nepal, New Caledonia, New Zealand, Pakistan, Papua New Guinea, the Philippines, Singapore, Sri Lanka, Vanuatu, Vietnam and Western Samoa. The conference on 19th August, 1995, adopted a Declaration of Principles of Judicial Independence which is set out in the Beijing STATEMENT OF THE PRINCIPLES OF THE INDEPENDECE OF THE JUDICIARY IN THE ALWASlA REGION which is annexed to this paper. African judicial officers can learn a lot from the Beijing Declaration of Principles of Judicial Independence.
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