Defying the Odds

Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa. By Jennifer A. Widner. W.W. Norton, 2001. 454 pp.

In many newly democratizing countries, political and constitutional reforms accompanying democratic and market transitions have enhanced the stature and power of judiciaries that, until recently, were often little more than appendages of the executive. In some cases--notably South Africa and Central and Eastern Europe, where the transitions marked a radical break with the past--constitutional designers not only retooled the existing judicial structure but also founded new constitutional courts. In countries where the transitions were incremental rather than revolutionary, "holdover judiciaries" were retained, but with enhanced powers of review and broader jurisdictions.

Regardless of the nature of the transitions, these judiciaries can now boast of far more formal independence than they had in the recent past. Indeed, an independent judiciary, especially one with the power of judicial review, has become a pivotal part of the constitutional architec-ture of today's emerging democracies. Without it, modern constitu-tionalism--defined as the rule of law within a system of horizontal and vertical checks and balances--is considered a nonstarter.

Now that the need for an independent judiciary is generally accepted, the challenge for transitional democracies is to create and maintain such institutions. Traditionally this task has been ceded to constitutional architects and drafters, whose standard response has been to write into the constitutional document provisions that protect the tenure, salaries, jurisdiction, judgments, and administration of the courts against executive and other third-party manipulation. In many instances, the Siracusa Principles on the Independence of the Judiciary, adopted by the International Commission of Jurists in 1980, have served as a template.

Although well-intended and necessary, such "parchment guarantees" have not always proven adequate. Because courts control neither the purse nor the sword, a reliance on textual protection still leaves them at the mercy of powerful executives and legislative majorities. Continuing judicial vulnerability is greatest where the democratic transition is gradual and the timetable is under the control of incumbent political elites; where public "demand" for the courts is low; where opposition parties remain illegal or operate only at government sufferance; where the organized bar is weak or inactive; and where the private corporate sector is underdeveloped. How to build an independent judiciary in such "inauspicious circumstances" is the question that political scientist Jennifer A. Widner of the University of Michigan sets out to explore in Building the Rule of Law.

The book focuses on the struggle in the late 1980s and early 1990s to build judicial independence in the common-law countries of eastern and southern Africa, as one-party rule and "African socialism" gradually gave way to competitive politics and markets. Drawing heavily on interviews with African jurists and other key figures, Widner contends that the standard explanations for judicial independence lose much of their persuasive power when applied to the Africa of this era.

According to the conventional social-science wisdom, independent courts are unlikely to emerge without sustained pressure from influential interest groups: The courts must have "natural constituents"--foreign and local investors and commercial elites, opposition politicians, or an organized bar--willing and able to push for regime concessions in support of an independent judiciary.

The countries that form the subject of Widner's book do not fit this conventional view. At the outset, there were no natural constituents to speak of. Foreign investors did not have much use for local judiciaries: "Choice of forum" and "governing law" clauses in their agreements with governments and other local partners put disputes between such parties outside the jurisdiction of African courts. Local bar associations, where they were organized, were weak and internally fragmented. As for local business or corporate sectors, they were too small and often too vulnerable to want to squander what little leverage they had on defending the courts.

In the absence of natural constituents, the mantle fell on African judges themselves to take up the cause of judicial...