Far-reaching symposium on ‘spectacular recent efforts’ at undermining judicial independence in Africa

14 August 2020 · Carmel Rickard

Potentially far-reaching decisions about strengthening support for judicial independence in Africa were taken at a two-day online symposium held last week. Nine organisations hosted the event, illustrating the kind of joint action in support of judicial independence that participants said was essential. Speakers described judicial independence as ‘the last line of defence for the rule of law, human rights and democracy in East and Southern Africa’. They said it was crucial that legal organisations worked with civil society to protect judicial independence. Recent experiences had also shown the importance of support from organisations, regional and international, that were representative of judges and Chief Justices.

Watch key addresses at the symposium

When a Malawi government official issued a statement in mid June that Malawi’s Chief Justice Andrew Nyirenda was to be sent on enforced leave, pending retirement, no one could have predicted that it would lead to a continent-wide movement to support and defend judicial independence. Or that it would galvanise many organisations, local and international, to come together to ensure that throughout East and Southern Africa, the independence of the judiciary would be observed and given proper respect.

Just days before Malawi was to see a re-run of national elections, and immediately that news of the threat to the Chief Justice and the similar threats faced by one of his colleagues became known, a number of individuals and organisations responded. They brought legal action to prevent the CJ from being forced to take leave, they lobbied organisations of jurists and other Chief Justices to make statements in support of their beleaguered colleague. They helped marshal ordinary people who felt strongly about the threat to the Chief Justice, into protests on the streets. Ultimately, the strategy was successful. The Chief Justice has stayed on in office and, under the watchful eye of the judiciary in Malawi, the country delivered a free and fair election.

But the peril to which the judiciary of Malawi had been exposed, and the work that had been done with civil society, with legal and human rights organisations both local and international, and the work with the judges of Malawi, lead those involved to think that a new focus was needed; a new commitment to protecting judicial independence in the region. And so, last week, nine organisations held a two-day online symposium on the issue.

Glimpse

In his welcoming remarks, Don Deya of the Pan African Lawyers Union, gave the audience a glimpse of some of the behind the scenes organising that took place in response to the attempts to get rid of the Malawi Chief Justice via a statement issued by former judge, Lloyd Muhara, seconded to the position of Chief Secretary to the Government. In the wake of those events, the groups involved in ensuring that the CJ stayed on his post felt that they needed to ensure the development of a strong civil society focus on judicial independence across Africa.

The secretary general of the International Commission of Jurists, Sam Zarifi, spoke about the need for an independent and robust judiciary. While most countries paid lip service to judicial independence, there was a lot of hypocrisy, and actions often did not measure up to the official position, he said.

In the last few months there had been ‘rather spectacular’ efforts in Africa to undermine judicial independence. But there had also been heartening developments, with the judiciary ‘stepping up to fulfil its mandate and performing its role as the last line of defence for the rule of law, for human rights and for democracy in East and Southern Africa.’

Pressure

In not every country had the judiciary adopted this welcome response however. The ICJ had worked extensively in Zimbabwe, ‘where the judiciary could not step up to the pressure exerted on it.’

‘It could not face up to it and so we saw that the judiciary could not stop the manipulation of the electoral process.’ Over the last few years, onlookers had seen that many possibilities had been frustrated in Zimbabwe. ‘An amazing opportunity for progress may have been squandered,’ Zarifi said.

During the course of the symposium, attendees broke into several smaller groups to discuss issues including litigation in support of judicial independence, relations between the three arms of government that helped or hindered judicial independence, and, most important of all, how to bring together civil society, legal groups, organisations representative of regional and local judiciary as well as similar international bodies, supportive of local initiatives to ensure judiciary independence.

Mobilised

The symposium ended with a strong commitment by individuals and organisations represented to ensure that a strong, united front could be mobilised wherever the independence of the judiciary was threatened in the region.

The nine organisations that hosted the symposium are the Africa Judges and Jurists Forum, the American Bar Association, the East Africa Law Society, the International Commission of Jurists, the Kenya Section of the International Commission of Jurists, the Malawi Law Society, the Open Society Initiative for Southern Africa, the Pan African Lawyers Union and the Southern Africa Development Community Lawyers Association.

Carmel Rickard

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