JUDICIAL AND JURISPRUDENTIAL POWER OF AFRICAN CONSTITUTIONAL COURT JUDGES
There is no gainsaying that without independent judges to supervise the interpretation and application of constitutions, they would simply be like any ordinary piece of paper. The constitutional rights revolution in Africa from the 1990s enabled most countries on the continent to catch up with the global expansion of judicial power.
The aim of this paper is to briefly analyse the expanding role of Africa’s constitutional courts and the potential impact of their jurisprudence. It will also examine some of the factors that are necessary for entrenching and sustaining constitutional justice on the continent. I adopt a comparative perspective which straddles the diverse constitutional influences on the continent as is reflected in Anglophone, Arabophone, Francophone, and Lusophone countries.
The first section will briefly examine the main models of constitutional courts that operate on the continent.
Section 2 also briefly talks about the scope of their expanded powers.
Section 3 examines the potential impact of the jurisprudence of some of the constitutional courts.
In spite of the tremendous progress that has been made, section 4 of the paper highlights some of the challenges that remain and the ways in which this could be overcome.
In the concluding remarks, it is pointed out that the prospects for entrenching and sustaining a culture of constitutionalism and constitutional justice will depend on amongst many other factors a more progressive rights-conscious judicial approach to constitutional interpretation as well as the fostering of an intra-African jurisprudential dialogue.
1. MODELS OF AFRICAN CONSTITUTIONAL COURTS
It is important to have a sense of the courts in which African constitutional court judges operate. It certainly has an influence in the way they function.
Let me start by pointing out that I use the word “constitutional court” in a broad sense to refer to all courts dealing with constitutional matters whether or not they are expressly or impliedly referred to as constitutional courts.
Generally speaking, two distinct models of constitutional adjudication were received in Africa during the colonial period viz, the decentralised or what is often referred to as the American model (common in Anglophone Africa), and the centralised or Austrian model (main form, the Constitutional Council model widely used in Francophone and to some extent, Lusophone Africa). With the passing of time, these two main models of constitutional adjudication have taken on several peculiarities worth noting. From an analysis of the current situation in Africa, it is possible to say that three main models of constitutional adjudication operate. In addition to the above two models there is a third, the mixed model, which combines elements of both the centralised and decentralised system. Typical examples of the mixed model are: Ethiopia, it is a mix of judicial and non-judicial mechanisms, for Ghana, certain matters may be handled by the High Court and others by the Supreme Court, and for South Africa, it is a mix of a decentralised and centralised system.
It is however the expanding powers of African constitutional courts and hence the power of judges in the last two decades that has attracted much scholarly attention and interest.
2. THE EXPANDING POWERS OF AFRICAN CONSTITUTIONAL COURTS
Although we talk of the expansion of constitutional justice in Africa mainly because of the developments in Francophone, Lusophone and Hispanophone Africa, there have also been significant changes in Anglophone Africa. In a very brief way, we can summarise the subject matter jurisdiction possessed by modern African constitutional courts under 7 categories:
2.1 The power of Abstract and concrete review of legislation
Two things to note here. First, previously Francophone CC dealt mostly with abstract review, but since 1990, most now have the powers of concrete review.
Second, Anglophone CC also dealt mainly with concrete review, now many, such as the SA CC has the power of both abstract and concrete review.
Abstract review was generally criticised as violating the separation of powers principle because judges appear to be participating indirectly in the legislative process. However, its main merit is its preventive nature, since it allows the system to filter out unconstitutional laws before they are promulgated and can harm people. As the experience of the SA and Benin CCs have shown, a combination of both provides many advantages which either along cannot.
2.2 Individual constitutional complaints powers
Constitutional rights will not count for much if individuals are not able to seek protection under them whenever their rights are violated by the authorities. In Anglophone Africa, individuals have always had the right to challenge any constitutional violations but judges now have expanded and flexible powers in dealing with constitutional violations.
Unlike in the past, post 1990 constitutional reforms now give individuals in most Francophone and some Lusophone countries the right to directly or indirectly challenge unconstitutional laws.
2.3 Adjudication of disputes within a decentralised federal or regional setup
The scope of the powers that are conferred on the constitutional court often depends on whether they are operating within a unitary or federal system. In a federal or regional system where powers are shared between central and regional or federal units, the constitutions usually try to ensure that neither of these bodies exceed their powers nor usurp the powers of the other. There is usually a strong affinity between federalism and constitutional review. In this era of increasing attempts to decentralise and deconcentrate powers even within the unitary systems that are common in Francophone and Lusophone Africa, constitutional courts have under many constitutions been given powers to intervene in conflicts between the different decentralised or deconcentrated bodies.
2.4 Disputes concerning the horizontal separation of powers
The relationship between the main organs of government – the executive, the legislature and the judiciary, especially the institutional balance of powers between them and their interaction with each other, is usually a source of conflicts. This is particularly acute in Africa because executive lawlessness remains a fact of life due to the exorbitant powers that constitutions give the presidents or allow these presidents to arrogate to themselves.
Constitutional courts today therefore have an important role to play in ensuring that the different organs of government operate within the limits of their powers.
2.5 Adjudication of electoral disputes in parliamentary and presidential elections and national referenda
The right to vote and form political parties and multiparty elections is without doubt the most visible sign of Africa’s transition from one-party dictatorship towards multiparty democracy. Yet elections have proven to be the weakest link in the democratic transition due to regular electoral fraud, vote rigging and other electoral malpractices.
Courts (ordinary courts or/and special electoral courts) have often been given jurisdiction to deal with electoral disputes. At least, three patterns can be discerned. Most Anglophone African constitutions contain provisions that reserve any disputes concerning the violation of the bill of rights, which regulates elections, to special courts, usually the High Court.
The second pattern, which is common in those countries that have adopted the French Constitutional Council model, is that the latter is given the powers to review elections results and proclaim the results.
A third pattern is where the constitutional court has been given the powers merely to proclaim the results. For example, item 94 (c) of the Constitution of Equatorial Guinea simply states as one of its functions, “proclaiming the final results of presidential, municipal and legislative elections and referenda.”
2.6 Adjudication of disputes concerning the non-registration or prohibition of political parties
Conferring the function of adjudicating disputes concerning the non-registration or prohibition of political parties is recognition of the fact that although political parties are a very important element in a democratic political system, they, like governments, can also be agents of violating constitutional rights. The purpose of such powers is usually to ensure that political parties do not espouse policies that threaten to undermine democracy and political stability. For example, the constitution of Burkina Faso, whilst recognising the right to form political parties excludes, according to article 13, political parties that are “tribalist, regional, confessional, or racist.”
2.7 Other powers
Two other ways in which the jurisdiction of constitutional courts has been enhanced are worth mentioning. First, under Anglophone African constitutions constitutional judges are often given special flexible powers to deal with constitutional violations. For instance, where it finds that a law is inconsistent with the bill of rights, it may, “if it deems fit, or if the circumstances or public interest so requires, instead of declaring that such law or action is void…decide to afford the Government or other authority concerned an opportunity to rectify the defect.” They are also often given flexible powers to “make such orders, issue such writs and give such direction as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions” in the bill of rights.
A second example, comes from the 2010 Kenyan Constitution which has broadened the rules of locus standi. In this regard, article 22(2) of the Constitution states that proceedings could be instituted by:
(a) a person acting on behalf of another person who cannot act in their own names;
(b) a person acting as a member of, or in the interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its members.
Article 22(2) even goes further to limit formalities relating to proceedings to a minimum and provide that the court shall, “if necessary, entertain proceedings on the basis of informal documentation,” and that “no fee may be charged for commencing the proceedings.” This is of tremendous importance given that a major obstacle to the effective enforcement of human rights in many African countries is the fact that too many people, whose constitutionally protected human rights have been violated, due to ignorance, poverty, marginalisation or some other social or economic disadvantage, are unable to approach the courts for relief. Broadening the local standi access to justice in this way is likely to considerably help to alleviate the situation of the poor who are often the main victims of human rights abuses.
It is however the impact that the exercise of these powers have had on respect for the rule of law and the efforts to entrench an ethos of constitutionalism that matters and to which we shall now turn.
3. IMPACT ON JURISPRUDENTIAL DEVELOPMENT
The new constitutional dispensation, with an expansion in the power and jurisdiction of constitutional courts provided judges with the opportunity for the first time since independence to act as defenders and protectors of the newly won constitutional rights. The assumption was that under these rights-friendly constitutions, constitutional judges will further develop and entrench a culture of constitutional justice, democracy, and respect for human rights and the rule of law. Just by way of illustration, the discussion in this section will limit itself to how the courts have dealt with cases concerning elections and some instances of abuse of executive powers.
3.1 Courts and electoral disputes
Constitutional court judges in constitutional democracies usually play a very important role in securing the integrity of elections as the main channel of peaceful and democratic change. An analysis of the constitutional framework for dealing with electoral disputes in Africa shows that judicial intervention may occur in three ways.
First, it may be to resolve disputes over the basic rules to ensure that they conform to the constitution and provide an even playing field.
Second, it may be to ensure that the electoral rules have been complied with by all the parties and have led to a free and fair outcome. This is where judicial intervention is critical.
The third is where the court intervenes merely to formally declare the results of the elections. This is the most controversial role because the court is reduced to a channel for legitimising election results regardless of any irregularities that may have occurred.
Some empirical studies suggest that judges turn to read signals from the political environment when making decisions involving elections. Judicial assertiveness in these disputes depends on the extent of power concentration or fragmentation amongst key political actors. Where power is concentrated with a low likelihood of political change, the judges engage in strategic self-restraint and the likelihood of anti-government decisions diminishes. Where however, the system is fragmented and there is high likelihood of change, the judges will defect strategically to distance themselves from current officeholders.
However, courts will be better placed to ensure justice when most of these skewed electoral laws are revised to ensure a level playing field for all the candidates. But besides the challenges of dealing with election disputes, courts also face a tough time trying to ensure that the executive operates within the bounds of its powers.
3.2 Curbing executive lawlessness
Executive lawlessness has been the bane of Africa’s political problems. Before the 1990s in Africa, the weak position of the judiciary, compounded by the exorbitant powers conferred on presidents enabled the latter to arbitrarily interfere with the judicial processes and get away with violations of the constitution. With the expansion of the reach of constitutional justice today, the question is whether the standards of justice have improved.
Several studies of the jurisprudence of the best examples of modern African constitutional courts, the Benin Constitutional Court modelled on the French Constitutional Council and the South African Constitutional Court, which although a hybrid is modelled on the American approach, show how in several instances, the courts in both countries have intervened on numerous occasions to restrain abuses of powers.
The Benin Constitutional Court is today one of the best examples of a modernised constitutional council model. It has also been one of the most active courts of this model and has since its establishment in the early 1990s made a number of very significant decisions.
The South African Constitutional Court has adopted a very progressive and activist approach in most of the decisions that it has taken. Three examples where it has intervened to curb executive excesses are discussed in the paper.
But there are numerous challenges that constitutional court judges face.
4. CHALLENGES AND PROSPECTS FOR THE FUTURE
Although the constitutional and institutional framework within which constitutional court judges operate today is better than it has ever been, their ability to act in a manner that will entrench constitutional justice, democracy, good governance and the rule of law is subject to a number of challenges. We will consider some of these challenges and from this gauge the prospects for the future.
4.1 Challenges faced by judges
There are several challenges but this section will focus on and briefly discuss three main ones viz, the increasing politicisation of the judiciary, judicial corruption, lack of resources and judicial conservatism.
Political interference with the judiciary in general, and with the appointment of constitutional court judges in particular, poses a serious threat to the ability of these judges to operate independently, objectively and fairly. This is probably the most insidious problem that has survived the post-1990 constitutional reforms and remains a potent obstacle to their ability to act independently and competently. Where a judge is appointed not on merit but rather his perceived or actual loyalty to the government, he will feel beholden to the executive and decide matters not on the basis of the law but rather in a manner that will favour those who appointed him.
Over and above this are the political attacks often made against judges. For example, the political attacks on judicial independence and the integrity of judges in South Africa has left many constitutional experts who had hoped that its constitutionalism would set a high standard for the rest of the continent to follow, worried. The on-going review of the judgments of the Supreme Court of Appeal and the Constitutional Court in South Africa leaves many wondering what restraints the executive might try to impose on these courts, whose jurisprudence has been acclaimed worldwide.
Studies on the judiciary in Africa in the last two decades have drawn attention to the problem of lack of resources and its impact on service delivery. Without adequate resources, the judiciary cannot operate either independently or efficiently. Withholding sufficient resources may sometimes be a deliberate political ploy to put pressure on the judiciary. In some instances judges have complained that their budgets have been cut because of judgments given against the government.
Judicial performance is also undermined by the problems poor infrastructure, lack of adequate funds to cover running expenses, insufficient stationery and office equipment and limited working facilities such as court rooms. In many countries, judges still don’t have easy access to legal information resources such as books, case reports, statute books and gazettes. This is acute in the rural areas where there are no libraries or where libraries have been neglected over the years.
The ability for effective judicial development of the law on the continent has been retarded or even reversed in many countries by the poor state of court records. This sometimes makes it very difficult for the superior courts to deal with appeals. In the common law system which is heavily dependent on judicial precedents, the absence of a reliable and regular system of law reporting in many countries makes it difficult for the doctrine of stare decicis to function properly.
The revival of constitutionalism in the 1990s was supposed to be reinforced by a new approach to constitutional interpretation. In many jurisdictions there isn’t enough evidence to show that African judges are alive to the new progressive constitutional rights spirit or if so, have sufficiently manifested this in their approach to constitutional interpretation. The future of constitutional justice in Africa will depend on how the judiciary becomes more proactive to reflect global advances in constitutionalism.
4.2 Prospects for the future
The prospects for the future depends on the judiciary becoming more assertive and willing to reflect the contemporary desires and aspirations of the people and the progressive spirit of the post 1990 constitutional reforms. At least three things need to be done. First, the promotion of an intra-African judicial dialogue, second the inculcation of a culture of progressive or transformative constitutionalism and finally improvements in judicial training.
4.2.1 The need for an intra-African judicial dialogue
There is little evidence of cross-systemic borrowing from Anglophone to Francophone or Lusophone Africa and vice versa. As a result, there has so far been little evidence of an intra-African judicial dialogue either in terms of cross-fertilisation, borrowing or migration of constitutional ideas through the use by judges of the jurisprudence developed in other African jurisdictions. The embarrassing absence of an intra-African dialogue and its importance cannot be underscored. The similarity of the experiences that African countries have gone through from colonialism and its aftermath to the challenges of dealing with ethnic, cultural and religious diversity means that they can learn from each other’s experiences. This is not just a question of blindly copying what obtains in other jurisdictions but rather attempting to draw inspiration from their jurisprudence.
The need for African judges to refer to or invoke foreign law need not be explicitly or implicitly authorised by the constitution. It can be argued that in the globalised world of today, it would be self-defeating and reckless disregard of duty for a judge to completely ignore legal developments in the rest of the world and their actual or potential implications on national law. The fundamental values that underpin most constitutions, such as equality, dignity of the human person, non-discrimination, freedom of speech and others are now universal.
4.2.2 The need for a decisive move towards transformative and progressive constitutionalism
African constitutional jurisprudence will hardly develop if judges continue with the passive approach to constitutional interpretation that characterised the pre-1990 judiciaries. The judiciary was then handicapped not merely by the intolerance of the executives but also by the “enthusiastic abdication of judicial responsibilities by the judges”. African constitutional jurisprudence can only develop and grow with judges who are liberal, progressive, activist or have “bold spirits” and not the “timorous souls” of the passive judges of the past.
An ethos of constitutionalism can be nurtured and sustained if constitutional court judges are ready to use their powers to negate the continuous authoritarian impulses of elected politicians. A decisive move towards transformative and progressive constitutionalism requires at least two measures.
First, constitutional court judges must as an imperative, adopt a more principled and rights-sensitive approach to interpreting constitutions. This will require them to take cognizance of the radical political, economic and social changes of our times and the revulsion against dictatorship, corruption, and human rights abuses.
Second, the increasingly broad powers given to constitutional court judges to interpret the constitution in the light of international human rights instruments and sometimes also foreign law, provides considerable vistas not only to keeping African constitutions up-to-date but to also ensuring that they conform to modern principles of good governance and respect for the rule of law.
4.2.4 Judicial training
To prepare judges for the very important tasks that they are required to carry out the present system of training needs to be improved in at least three ways. First, there is need for formal training complemented by regular continuing education programmes. Second, the increasing need to refer to and rely on foreign law means that judges need to be trained in the techniques of comparative law. Finally, if it is accepted that it makes legal sense as well as common sense to refer to the developments in other African countries, then it must also be accepted that there is need not only for courses in comparative African legal systems to be introduced but also fora for judges from different jurisdictions to meet and exchange ideas.
The ability as well as necessity for constitutional court judges to play an important role in sustaining the momentum for constitutional justice and protecting the democratic gains of the last two decades assumes an unprecedented importance and urgency because of the many threats that we face from the enemies of constitutional democracy and good governance. The gains cannot disguise the fact that we are today sliding down the slippery slope that is moving us ever closer to the non-competitive elections of the pre-1990s with sit-tight presidents, wielding unchecked powers that enable them to intimidate judges. It is also important to acknowledge the fact that the ability of constitutional judges to become effective defenders of the constitution and protectors of the ordinary citizens has been enhanced since the 1990s.
Although the prospects for the future do not look as rosy as they were in the early part of the constitutional rights revolution in the 1990s, it is nevertheless clear that there are now more opportunities for the judiciary to play a more active, meaningful and constructive role to promote the course of democracy and constitutionalism. There is need for more judicial boldness and assertiveness.
It has been argued here that the entrenchment of constitutionalism and the development of a strong African constitutional jurisprudence will depend on how, African constitutional court judges open up and are ready to share ideas and learn from each other as well as actively participate in the global judicial dialogue with particular attention to intra-African dialogue.
Let me end by saying that African constitutional courts and the judges who sit in them constitute one of the most powerful counter-majoritarian measures we need today to protect and strengthen our fledgling constitutional democracies. In fact, constitutional courts and constitutional court judges are not only the guardian of our constitutions but also the last line of defence against dictatorship.
I thank you for your kind attention.
Professor Charles Manga Fombad
Head, Comparative African Constitutional Law Unit,
Institute for International and Comparative Law
Faculty of Law
University of Pretoria.