Balancing Justice: Can African Courts Remain Untouched by Political Power?

By Denis Muteguya

In recent years, Africa has embarked on a journey of profound judicial reforms, endeavouring to ensure that justice is both blind and impartial. This quest, however, is fraught with complexities, as the delicate dance between law and politics continues to sway the scales of justice.

Can the justice system on the African continent truly adjudicate without the invisible hand of political power tipping the balance? This question requires a deep dive into the heart of judicial practices across diverse African nations. Some have indeed made commendable progress, crafting legal frameworks that promise fairness and impartiality. Yet, others remain ensnared in the web of political interference, where the principle of separation of powers is more theoretical than practical.

The essence of a fair and effective justice system lies in its independence, an independence that is often compromised by the very process of appointing judicial officers. In numerous African countries, the executive branch wields the power to appoint and remove judges, casting a long shadow of potential bias and conflict of interest. Take Nigeria, for instance, where the President’s power over judicial appointments has raised eyebrows and doubts about the impartiality of the judiciary. The suspension of Chief Justice Walter Onnoghen in 2019, just before a critical election, is a case in point, highlighting the precarious balance between law and politics.

Similarly, in Kenya, the Judicial Service Commission, responsible for appointing High Court judges, is predominantly composed of political appointees. This intertwining of legal and political threads raises valid concerns about the judiciary’s ability to remain neutral, especially in high-stakes cases involving the government. The nullification of the 2017 presidential election results by the Kenyan judiciary stands as a testament to the inherent tensions and the judiciary’s struggle for independence.

Uganda presents another intricate case. The judiciary has often found itself at the crossroads of political power plays, especially in matters involving opposition figures. The arrest and trial of opposition leader Bobi Wine have sparked debates about the judiciary’s autonomy and susceptibility to executive influence.

Yet, amidst these challenges, there are glimmers of hope and exemplars of judicial independence. South Africa’s Constitutional Court shines as a beacon of judicial integrity. The judges, appointed through a transparent and merit-based process by an independent Judicial Service Commission, have delivered landmark rulings against government actions, showcasing a judiciary that stands firm and autonomous.

Ghana, too, offers a narrative of resilience. The Judicial Council, composed of judges and legal professionals, oversees the appointment and discipline of judges. This independent body has successfully upheld judicial impartiality despite the undercurrents of political pressure.

Civil society and the media play pivotal roles in this intricate ballet of justice. In countries with vibrant civil societies and free press, the judiciary operates under the vigilant eyes of the public, making it less susceptible to political machinations. Transparency and accountability, bolstered by the watchful gaze of an informed citizenry, fortify the judiciary’s resolve to deliver justice impartially.

The path to an independent judiciary, however, is strewn with obstacles that require deliberate and concerted efforts to overcome. Reforming the appointment processes is paramount, ensuring that judicial appointments are made through independent and transparent mechanisms. Judicial Service Commissions should be composed of legal experts rather than political appointees, safeguarding the judiciary from undue influence.

Strengthening the legal frameworks that protect judicial independence and limit executive interference is equally crucial. Constitutional provisions must be robust, providing judges with security of tenure and protecting them from arbitrary removal. Moreover, establishing independent oversight bodies to monitor judicial conduct and discipline can help maintain the integrity of the judiciary.

Empowering civil society and the media remains a cornerstone of judicial independence. A free press and active civil society foster transparency, holding the judiciary accountable and ensuring that justice is not only done but seen to be done. International support and cooperation, too, play a vital role, with global bodies and donor agencies providing technical assistance and supporting judicial reforms.

Turning our gaze to Uganda, the challenges of political influence and corruption loom large. The judiciary’s ability to handle sophisticated cases, particularly those involving high-profile politicians, is often called into question. Reforms that ensure the merit-based appointment and promotion of judges are essential. Specialized anti-corruption courts, staffed with judges trained to handle complex corruption cases, can enhance the judiciary’s capability to tackle such issues.

Capacity-building initiatives, continuous legal education, and access to resources are vital for equipping judges and judicial staff with the tools to handle intricate cases effectively. Public engagement and transparency in judicial proceedings can help build trust and confidence in the judiciary, ensuring that the public perceives the judiciary as a bastion of fairness and impartiality.

International collaboration, drawing on best practices and technical assistance from peer judiciaries, can further bolster Uganda’s judicial system. Through such concerted efforts, the judiciary can rise above the shadows of political interference and corruption, delivering justice with unwavering integrity.

Amidst this landscape, the East African Court of Justice (EACJ) holds a unique and influential position. Established as the judicial arm of the East African Community (EAC), the EACJ is mandated to ensure adherence to the law in the interpretation and application of the EAC Treaty. Its role extends beyond mere adjudication; it embodies the aspirations of regional integration and harmonization of laws among member states.

The EACJ has the potential to profoundly influence the judicial systems of its member states by setting legal precedents that promote the rule of law and respect for human rights. The court’s judgments, although binding only within the EAC framework, can act as powerful catalysts for national judicial reforms. For instance, its decisions on issues such as human rights violations, trade disputes, and governance can inspire domestic courts to uphold similar standards of justice and fairness.

Furthermore, the EACJ can serve as a guardian against political interference in the judiciary by providing an external forum for adjudication. When national courts are compromised or perceived as biased, litigants can turn to the EACJ for a fair hearing. This external oversight can pressure national governments to maintain judicial independence and uphold the rule of law.

For the EACJ to maximize its influence, member states must fully respect its authority and implement its decisions. Strengthening the court’s mandate and enhancing its capacity are also crucial. This involves increasing the court’s financial resources, expanding its jurisdiction, and ensuring that it has a robust framework for enforcing its rulings.

In this intricate dance of law and politics, the pursuit of an independent judiciary on the African continent continues. It is a journey marked by challenges and triumphs, requiring steadfast commitment to the principles of justice, transparency, and accountability. The East African Court of Justice stands as a pivotal player in this quest, offering a regional perspective and a beacon of hope for judicial integrity. Only through such dedication can the scales of justice be balanced, ensuring a fair and impartial legal system that stands as the bedrock of democracy and the rule of law.

The writer is a socio-economic analyst and political commentator / denismuteguya@gmail.com