THREATS to judicial independence have made troubling headlines in Africa over the last few months, with judges in a number of countries experiencing problems. We in Jifa are concerned about the situation and pledge to keep everyone in our network aware of developments as they come to our notice.
Nowhere have threats to judicial independence sparked more international publicity than in Kenya but reports and judgments from other states show that the judiciary is under pressure elsewhere too.
At first, Kenya seemed a good-news story for the rule of law and judicial independence. When that country’s highest court, led by the chief justice, David Maraga, ruled that last August’s elections were invalid and had to be re-run ( http://kenyalaw.org/caselaw/cases/view/140478/
) government obeyed the court’s order. Despite some grumbling, new elections took place.
For the CEO of the SADC Lawyers’ Association, Stanley Nyamanhindi, this was an impressive moment in the legal history of Kenya and the region. Kenya’s government also won the admiration of the international community with its obedience to the court’s orders. He said it seemed at the time that the judiciary was strong and independent, and that it enjoyed the respect of the government and the people.
The rule of law appeared strong and Kenya “was almost something of an example to the rest of Africa,” he said. “The judiciary gave a ruling and the whole country obeyed. It was exemplary.”
But with hindsight, the threats by the president, Uhuru Kenyatta – to “deal with” the judges once the second election had been finalized – were serious. “We will revisit this thing,” Kenyatta said. “There is a problem and we must fix it.” After the re-run polls, the honeymoon phase for the country’s judiciary quickly ended.
In the aftermath of the re-run elections, the chief justice has spoken about “threats” against the supreme court, saying that the judiciary was under threat from “senior political leaders” who had said they would teach the judges a lesson.
Kenyatta’s threats and his insults – calling judges “crooks” – sparked strong reaction from the Law Society of Kenya whose president, Isaac Okero, described the remarks as “inappropriate” coming from the head of state. One government-supporting MP even threatened to have the supreme court disbanded. Kenya’s association of magistrates and judges flagged the threats and attacks as “an assault on the independence of the judiciary”. Attacks by politicians have however increased. Insults and claims that the judges have been “captured” were made in parliament with the claims being strongly denied by the chief justice.
These direct threats against the institution of the judiciary still loom but other problems that infringe on judicial independence have become clear on another plane, with very senior government officials routinely flouting orders of the judiciary. Most recently this has been seen in the matter of lawyer and political activist, Miguna Miguna, now twice deported from Kenya, each time in flagrant disobedience of a growing number of direct court orders.
Found here: http://kenyalaw.org/caselaw/cases/view/148182/
It almost seems as though it has become a matter of personal pride for staunch government supporters, ministers and other officials, to ignore anything the courts say. In the view of Nyamanhindi, “The whole situation has become unthinkable.”
“It is one thing to be in contempt,” he said, “but they are compounding it every day with action that takes them further and further away from the rule of law.”
In Uganda, by contrast, things are looking rather better for judicial independence. When the two judges of that country’s industrial court found themselves appointed under conditions that they believed undermined their independence, the two judges took the matter to the constitutional court where matters were quickly put right.
It was clear that the attorney-general’s office was not really up for a full-on fight on the issue. Legal representatives of the AG put up only a token resistance in court with somewhat bizarre justifications for why the industrial court judges had terms fixed at five years by parliament, when the constitution clearly did not give parliament power to cut the terms of office of judicial officers. The legal team appearing for the industrial court judges said that unless the constitutional court took action in support of the industrial court, it would open the way for parliament to pass laws creating courts with terms of service different from what the constitution prescribed. And that, in turn, would “undermine the independence of the judiciary”.
Uganda’s top court agreed, quoting an earlier Ugandan decision linking judicial conditions of service to judicial independence:
“(The) term of office … and other conditions of service of judicial officers generally shall not be varied or altered to their detriment or disadvantage. This is an elementary safeguard to be found in most developed legal systems where it took many historic struggles to establish … as the most fundamental of all safeguards of judicial officers’ security of tenure. When this safeguard is destroyed by whittling away (Constitutional protective provisions) and judicial officers are put at the sufferance of the executive or at the whims of the legislature, the independence of the judiciary is the first victim.”
In Lesotho, judicial independence – and its opposite, political meddling that undermines independent judges – was highlighted in an important decision that spelled bad news for the country’s former appeal court president. Read more here
. Last year former university academic Kananelo Mosito was dismissed as a judge as well as losing his post as head of the appeal court. This followed the report of a tribunal set up to consider allegations of misconduct against him. Following the tribunal’s recommendation, he was sacked by King Letsie III, who then appointed a retired South African judge to follow Mosito as president of the appeal court.
After a change in government, however, the new prime minister summarily dismissed the incumbent head of the appeal court, and reinstated Mosito.
Four of Lesotho’s senior legal practitioners challenged this development. The three judges brought in from other countries to hear the matter, had no hesitation in declaring Mosito’s second appointment irrational, while the summary dismissal of his predecessor was strongly condemned as something that undermined judicial independence: “Where, as in this instance, the most senior member of the judiciary is removed from office at the whim and pleasure of the Prime Minister in direct contravention of the constitution, the dignity of the courts is impaired, their independence radically imperiled and their impartiality drastically eroded.”
From South Africa too, comes troubling news of judicial orders ignored by government officials, most recently in relation to the most vulnerable in that society – refugees and asylum-seekers. Despite two court orders, the department of home affairs has failed to re-open a key office that receives applications from refugees in Cape Town. Officials, clearly in contempt of court, have given no sign that this is a matter of urgency for the department.
Potential flash-points to watch for over the next months?
Unfortunately, there are several.
Kenya is the most obvious, with every indication that the problem of government officials flouting court orders and being found in contempt of court, could be headed for a climax.
Judicial independence also appears to be at risk in the Seychelles and Lesotho where government action is pending against the respective chief justices, women in both cases.
- If you become aware of threats to judicial independence anywhere in Africa, please let us know, contact us via email email@example.com