"Timorous" judges vs "bold spirits"

The positive role that judges could play in Africa has been hampered by the increasing politicization of the judiciary, judicial corruption, lack of resources and judicial conservatism, according to Professor Charles Fombad of the Institute for International and Comparative Law in Africa at the University of Pretoria. In a challenging address to the International Association of Judges’ Africa region conference in Cape Town, Fombad urged judges to take note that if these issues were not properly dealt with, the “reverse winds” of authoritarianism and the decline of good governance and constitutionalism, caused by politicians clinging to power, might prevail.

Read the paper by Professor Charles Fombad

Unusual for the subject of constitutionalism to cause discomfort, but Professor Charles Fombad's paper at the conference of the International Association of Judges' Africa bloc seemed to make some participants distinctly uneasy. 

Originally from Cameroon, and now a staffer at the University of Pretoria's law school, Fombad did not mince his words. This expert on constitutionalism and judicial independence in Africa said judges across this continent had not always played their full role as constitutional guardians, protectors of human rights and impartial enforcers of the rule of law. This was partly due to “judicial timidity and the abdication of responsibility by judges deferring and pandering to the perceived or actual wishes of the executive”.

It was one of the most challenging addresses at the conference, forcing judicial officers from around the continent to re-examine the mindset that they bring to bear when they considered cases that could have a political impact.

Fombad said that despite an era of widespread constitutional change in Africa, politics across the continent had become more volatile because of the increasing tendency of politicians to hang on to power. Politicians have resorted to manipulation of the appointment system, the deliberate appointment of executive-minded judges and even to intimidating the judiciary.

The problem of judicial corruption also remained a “potent problem”. Though judges were “reasonably well paid”, with salaries and pensions well above that of the average civil servant, the institution was generally considered to be the most corrupt institution in Africa after the police. “The quality of justice has suffered where it becomes cheaper to buy a judge than hire a lawyer.”

While many jurisdictions suffered from a serious lack of resources, something outside the control of judicial officers, there was another factor for which judges themselves were responsible (apart from corruption), namely judicial conservatism, he said.

Many African judges were not alive to the new progressive constitutional spirit or have not shown this spirit in their decisions. The new context included rejection of dictatorship and sensitivity to issues of human rights, a field in which many judges did not show an understanding of the changed thinking in the rest of the world.

As African leaders intensified their fight to cling to power, judges would find themselves under increasing pressure to decide cases in a way that deferred to the executive. But the bench had to “reflect contemporary desires and aspirations of the citizenry and the progressive spirit of post-1990 constitutional reforms.”

This required judges who were willing to act as the last defence against authoritarianism and to join the global judicial dialogue about how to promote respect for the rule of law and good governance.

In Fombat’s view, judicial independence was compromised by “enthusiastic abdication of judicial responsibilities” - one of his most scathing and challenging descriptions. African judges should no longer be “timorous souls” as in the past. Instead they must be “bold spirits” adopting a more principled and rights-sensitive approach, using their constitutions as living documents and ensuring that their countries did not breach international commitments, even where these had been signed but not domesticated. They should also join the “global judicial dialogue” and engage with relevant foreign decisions and thinking.