A New Jurisprudence for Africa

Africa’s judiciaries are emerging at last from decades of powerlessness and marginalization at the hands of omnipotent executives and strongmen. Constitutional reforms that have accompanied democratic transitions in countries like Benin, Ghana, Malawi, Namibia, South Africa, Tanzania, Zambia, and Zimbabwe are helping to redefine the role and enhance the stature of the judiciary in the contemporary African state. While past judiciaries served primarily as passive instruments of legitimation for authoritarian regimes, today’s African courts, like their counterparts in emerging democracies elsewhere, must enforce constitutional limitations on the exercise of governmental power, as well as protect the rights of citizens, the media, and civil society. The idea of judicial review is now enthusiastically embraced in a growing number of African countries.

Establishing judicial review is, of course, the easy part; a clause or two in the national constitution is generally all that is required to bestow such awesome power on the courts. The challenge is to ensure that judges in newly democratizing states exercise their new power so as to advance and deepen the transition to constitutional democracy. This is indeed a matter of genuine concern, because judicial review, though widely celebrated by democrats and constitutional architects in transitional democracies, is not quite the unmitigated virtue it is frequently made out to be. As Alexander Bickel has reminded us, “judicial review means not only that the Court may strike down a legislative [or executive] action as unconstitutional but also that it may validate it as within constitutionally granted powers and as not violating constitutional limitations.”¹ Because judicial review “performs not only a checking function but also a legitimating function,”² it is a double-edged sword. If exercised courageously (but prudently) to defend rights or hold the line against abuses of power, it could enhance constitutionalism in transitional democracies. In the hands of weak, insecure, or illiberal judges, however, judicial review could easily become an even more formidable instrument for legitimating authoritarianism.

Thus Africa’s newly democratizing states must seek to minimize the risk that judicial review will become a curse rather than the blessing it was meant to be. Because it has generally been assumed that the African judiciary’s primary problem to date has been the lack of institutional autonomy and career security for judges, Africa’s contemporary constitutional architects have adopted the standard Hamiltonian solution: judicial independence. Thus Africa’s new constitutions all carry the standard provisions designed to secure judges in their jobs, salaries, jurisdiction, and judgments. Judges no longer hold their offices at the sufferance of the executive; judicial salaries and other benefits may not be varied to the judges’ detriment; the jurisdiction of the courts may not be diminished at the pleasure of the executive or legislature; and, in general, at least two independent institutions must cooperate in making judicial appointments. In some cases, as in Ghana, the new constitution goes even further by giving the judiciary autonomy in the preparation, administration, and control of its own budget.

Except in South Africa and Benin, where newly created “constitutional courts” have been laid over the preexisting judiciary, Africa’s newly refurbished judiciaries have generally consisted entirely of holdovers from the ancien régime “grandfathered” into the new constitutional arrangement in the name of institutional continuity. The assumption seems to have been that, given a new constitution with a host of rights-friendly provisions, limitations on governmental power, and guarantees of judicial independence, judicial review will lead to a liberal-democratic jurisprudence almost as a matter of course. Yet the evidence that is emerging, especially from the common-law jurisdictions, suggests that there is a significant risk that an asymmetrical jurisprudence will take hold, with the constitutional text contemplating a rights-friendly, liberal-democratic jurisprudence while the actual decisions and reasoning of the courts take a different course. Ghana’s experience under its new constitution is a case in point.

Liberal Constitution, Illiberal Jurisprudence

On 7 January 1993, Ghana’s fourth republican constitution went into effect. The constitution, adopted by referendum in April 1992 (hence the “1992 Constitution”), promises a new beginning in the life of the country. In...