1.  Introduction

In this chapter, I seek to identify a particular feature of the way in which the separation of powers is understood in the context of African systems, and to challenge it. The feature, in one sentence, is a pervasive tendency to see the exercise of credible judicial power as the solution to separation of powers problems, and thus to seek more of it. This tendency is understandable, given the post-independence history of African states, and I do not doubt its relevance. What I seek to challenge is not its place at the table but the overwhelming dominant focus on it to the neglect of other possibilities that both logic and comparative experience suggest should also be relevant in Africa going forward. One of these possibilities is that judiciaries may come to exercise too much power, a very familiar problem to global scholars but one that is strikingly rare in scholarly discussion in the African context. Another is that the relationship between the entities of the separation of powers can also be more amicable. Judicial relationships are not always confined to power struggles with the politically powerful, and this means, above all, that not all responsible judicial action is about boldly standing up to threats to rights from other branches. We neglect both possibilities if we seek only more judicial action, and this neglect can mislead.

My argument starts from two premises. First, I understand the separation of powers as something to be established, a way in which constitutional structures are supposed to operate, and that, insofar as the task of establishing that way of operating is a matter of having certain provisions in the constitutional text, African countries increasingly tick the box. Texts and their defects receive a good deal of attention, and in some African systems textual reform understandably remains a priority. But many African constitutions now provide for the basic elements of the separation of powers. It is increasingly implausible to think of textual reform as the key to further progress in those systems. As Charles Fombad has noted, problems are now usually to be traced not to ‘the absence of constitutions’ but the ‘absence of constitutionalism’.¹ Accordingly, my second premise is that today’s key questions are usually about whether the real-life institutions manifest the legal relationships required by the text, and about how to (p. 206) attain or cement this desirable state of affairs. Such enquiries quickly go beyond questions of text and doctrine and implicate broader political relationships, and that is why it potentially matters so much if we have an incomplete understanding of the forms these relationships can take. Identifying and interrogating these understandings is therefore important both to re-imagine internal African debates and to convey to external observers a crucial part of how African constitutional scholarship currently understands itself.

2.  Approach

For simplicity’s sake, this chapter will focus on what is usually the most important relationship for purposes of discussion of the separation of powers in the African context: the relationship between the executive and the judiciary. This is the most important simply because African executives tend to hold the most power and because legal scholars tend to view courts of constitutional jurisdiction as the guardian who might be able to check this power and the abuse of it by unscrupulous leaders. However, other institutions are of course important too, and my arguments will have some relevance to judicial relationships with other bodies as well. I do not aim to rehash theoretical debates about the separation of powers; questions of the concept and its different forms in African systems are taken up elsewhere in this volume. Instead, my approach is heavily case-based, and in this I have a secondary aim. Global comparative scholarship tends to neglect African examples, with the prominent exception of South Africa. There is no good reason for this, especially in a post-Cold War world in which both the richness and the credibility of African constitutionalism has increased significantly. In response, with the aim of enriching the dialogue in both directions, this chapter connects examples that are familiar in global discussions with the analysis of selected relevant and instructive African cases.

The models that currently dominate African discussion see an executive that is too strong and a judiciary that should be stronger. At worst, the executive subordinates the judiciary, whether by fear and intimidation, or by packing it with puppets and pawns. The result is that the judiciary does what the executive wishes and offers no check on executive activities. In relatively better cases, the judiciary preserves a meaningful sphere of action for itself by confining itself to actions that ruling powers desire or at least can accept. What separates the worst case of judicial subordination from the cases of judicial survival is that subordinated courts do not act independently while surviving courts do, albeit within strong political limits.

In fairness, these categories are the most useful for understanding judiciaries in Africa historically and are probably the most apt categories, in general, today. But even if only to avoid being blinded by conceptual habit, we should recognize the two other possibilities I have already noted. Courts might exercise much greater amounts of meaningful independent power. Taken to its logical extreme, this can result in a case of judicial supremacy, in which it is the other branches of government that start to lose meaningful ability to check the court, instead of the other way round. And finally, while relationships of subordination, survival, and supremacy all envisage a zero-sum, competitive relationship between the judiciary and the executive, it is also possible (p. 207) that this relationship can be more harmonious. The tendency to think of executives as threats is hardly far-fetched, but executive actors can also sometimes have admirable, constitutional goals. In such a context, there can be a virtuous alignment, in which both branches have meaningful independence in relation to the other but pursue similar, legally valid, goals.

These four variables are, of course, ideal types, with real practice displaying various patterns and degrees of each. The keys are the degree to which the judiciary is independent in relation to the executive, and the degree to which the two branches pursue different aims. A court that pursues the same goals as the executive may be subordinated, but if it is meaningfully independent it may instead enjoy a virtuous alignment. A court that seeks to pursue different goals to the executive will struggle in survival mode if the executive is dominant, but will enjoy judicial supremacy if the executive is largely unable to constrain the court’s actions.

3.  From Subordination to Survival

The case of judicial subordination requires little elaboration. At its logical extreme, it describes the case where courts have been bent entirely to the executive will and offer no meaningful or principled resistance to executive attempts to circumvent the rule of law. Africa is unfortunately a well-known source of examples of this case, either because executive power has destroyed courts; or because it ignores them (much the same thing); or as George Ocich puts it in the East African context, because ‘[f]rom the colonial times, the … courts have, by and large, been deliberate allies of the ruling elite’.² In such a case, a court is just a building with paper in it.

To the extent that something that can be taken seriously as independent judicial authority exists, we move towards a situation of judicial survival. Here, the exercise of judicial power may encounter non-compliance or provoke more direct attacks on the judicial institution, and the court may risk slipping back into a position of subordination as a result. But in a condition of survival, at least some credibly independent judicial authority succeeds in preserving itself over time. The state becomes characterized by something of a tacit bargain, in terms of which the powerful executive comes to tolerate or even welcome certain exercises of judicial authority. Such bargains may contain a strong element of subordination. There are likely to be large areas where courts know they must toe the executive line or face reprisals. But if the tacit bargain also contemplates areas in which courts will exercise meaningfully independent authority, the situation goes beyond subordination.

A standard reference point here is Latin America during its recent dictatorial rule. In several Latin American states, courts exercised meaningfully independent power over areas like private law, but were much less likely to challenge the regime itself. The details varied. In Chile, the Supreme Court declined to challenge the executive on matters of public law. Observers describe independent judges under Pinochet as (p. 208) ‘accomplices’ and ‘faithful agents of the authoritarian regime’.³ The Chilean case thus blurred into one of subordination, at least on public law questions. By contrast, the judiciary showed somewhat more resistance in a case like Argentina and more still in one like Brazil. But the basic pattern is one in which a meaningful degree of independent judicial power is tolerated in some areas, where judging may operate almost normally, while being much more sharply constrained in other respects.⁴

In Africa, Egypt was until recently an important example of this pattern. Egyptian judges exercised significantly independent authority for years under dictatorial regimes. Egyptian leaders tolerated this, and indeed both Presidents Sadat and Mubarak actively supported it to a degree. Both needed to offer credible legal services to foreign businesses and also sought responsible oversight of the lower levels of the bureaucracy where corruption was rampant.⁵ Such situations are naturally fraught with moral ambiguity for judges. The courts are used instrumentally by the regime, and the law ekes out an existence for itself partly by self-censoring its own reach. Egypt long exemplified this pattern. Another especially notorious example is the South African judiciary for much of the apartheid period. That judiciary prided itself on its expertise in private law matters and indeed also in a number of public law contexts, and it regularly exercised meaningfully independent authority in these areas. At the same time, however, most apartheid-era judges were very deferent on matters sensitive to the regime, such as detention without trial in the name of national security, and forced removals.⁶

From the perspective of those seeking more judicial power relative to the executive, such cases represent situations from which judicial power could be grown, with the right strategy. South African judges were not interested in doing this for the greater part of the apartheid period, but if judges do have the will, the features of a position of judicial survival offer a way. To be credible, judicial power must be seen as reasonably independent, and it can be difficult for an executive to get away with trying to confine (p. 209) credibly independent power to the contexts in which it was originally granted without undermining the whole edifice. If even dictatorial regimes have incentives to accept independent power in some places—incentives like reliably policing the lower reaches of their own governments or offering trustworthy contract enforcement to foreign investors—then judges might be able to expand their sphere of meaningfully independent power from that starting point.

The success of this strategy is of course by no means assured. The executive may choose not to tolerate attempts to expand judicial power, or even seek in response to reduce the level that already exists. The executive may decide to roll back judicial power independently of anything judges do, but a judiciary that expands power incautiously or challenges the government too strongly certainly increases the risks of provoking this reaction. Tom Ginsburg, for example, has compared the cases of Taiwan and Mongolia. In Taiwan, the Council of Grand Justices began in the 1980s to very cautiously extend its authority and thus both preserved and grew that authority. By contrast, the new Mongolian Tsets, a court created in 1992 roughly after the model of the Conseil Constitutionnel, over-extended itself and suffered backlash.⁷ The Russian and Hungarian Constitutional Courts are two other prominent cases where judges are understood to have exercised power very expansively and to have experienced backlash.⁸

In Africa, the case of Zimbabwe exemplifies this negative dynamic. The Mugabe government (1987‒) was initially seriously committed to the rule of law. In time, however, it began to exert more unilateral power in disregard of existing legal constraints. From the year 2000 the Mugabe regime politicized the judiciary.⁹ Judges who sought to hold the old legal lines found themselves the subject of various kinds of executive reprisals: non-compliance with orders, pressure to resign, and in some cases actual physical violence and imprisonment. In February 2001, the government forced Chief Justice Anthony Gubbay to resign, claiming ‘that it could not guarantee his safety if he stayed in office’.¹⁰ His replacement was Godfrey Chidyasiku, a former ZANU-PF deputy minister and Attorney-General under the Mugabe government who was widely perceived as a government supporter. The same year, President Mugabe packed the Supreme Court, adding three new judges. By 2002 five more of the original Supreme Court bench had resigned, the last of them, Justice Ebrahim, in response to Mugabe’s decision simply to ignore the Justice’s invalidation of an electoral law. During that year, former High Court Judge Fergus Blackie was arrested and briefly imprisoned, and two (p. 210) magistrates were physically assaulted in separate instances. ‘By April 2003’, concludes a survey by Jennifer Widener and Daniel Scher recording these events, ‘the state had built up an impressive record of noncompliance with court orders’.¹¹ Another incidental judicial victim was the SADC Tribunal, which had ruled that aspects of the Zimbabwean land reform programme were illegal. The Mugabe regime refused to comply with its rulings and pushed successfully for SADC member governments to suspend the Tribunal.¹²

Until recently, Egypt itself illustrated a less dramatic version of the same unsuccessful trajectory, one that effectively led to a stalemate until Mubarak’s overthrow. The Supreme Constitutional Court asserted powers in some important contexts and sometimes offered a meaningful forum to resist the executive. However, judicial assertions of power met continued executive responses. In 2000, for example, the Court claimed a role in overseeing elections, something the regime opposed and that the original text of the 1971 Constitution had sought to constrain. The government responded with a constitutional amendment that substantially restrained the power the judges had asserted. In this and other areas the government ‘constantly spun out fresh, illiberal legislation’ and ‘undermined the independence of the [Court]’ in response to attempts to open up the legal system.¹³ Instead of either a vicious backlash or a gradual growth of judicial power in the face of executive acquiescence, in other words, the result was something of a continuous standoff. The judiciary retained significant independence and authority, but it also did not succeed in expanding that authority very much in relation to the executive.¹⁴

However, under different conditions the power equation can be more promising for the court. A regime may weaken and its ability to resist judicial assertions of power may weaken with it. Public support may grow and support court rulings. A regime may wish to liberalize and open up to the international community, and therefore either support expanded judicial activity or find it too embarrassing to oppose it.

The Ugandan case is a modest example of this sort, although the situation remains unsettled and the outcome accordingly uncertain. Under President Museveni, the judiciary has encountered significant challenges to judicial authority. Armed commandoes invaded courtrooms on two occasions, one of them a hearing in a particularly politicized criminal case against Museveni’s main political rival, Kizza Besigye. The same case saw attempts to oust the jurisdiction of the ordinary courts in favour of military tribunals, including the disregard of court orders by the army officers holding (p. 211) Besigye and a number of his co-defendants. The government also made deliberate attempts to weaken the judiciary, publicly criticizing senior judges, leaving senior judicial positions vacant and under-funding the courts as a whole. At least some of the time, the courts have displayed political caution in response. Strategic decisions seem to have loomed especially large in the electoral context. In the wake of both the 2001 and 2006 elections, the Supreme Court rejected challenges by Besigye to Museveni’s presidential election victories despite finding that significant irregularities had occurred. Observers, while noting some of the weaknesses of Ugandan election law, attribute these results to executive pressure, judicial fear of reprisals, and ‘the Supreme Court’s reluctance to rule against the president on issues directly related to his remaining in power’.¹⁵ That said, however, other aspects of the Ugandan case show the court exerting significant power against the government. The courts have enjoyed considerable support from the Ugandan Law Society, the domestic legal community more generally, and the press. They have also benefitted from international pressure in response to the events accompanying Besigye’s prosecution. The International Bar Association and the International Commission of Jurists came out in support of the judiciary, the United States applied diplomatic pressure, and several European countries cut aid. The judiciary’s decisions against the government caused resistance but not decisive backlash, and the government has usually ended up respecting judicial authority, albeit grudgingly and slowly, and sometimes only after it had probably achieved its political purpose.¹⁶ In a case like the Ugandan one, the rule of law is battered, but courts can still—ultimately—prevail even in very politicized cases.

Judging during the last years of apartheid in South Africa is also susceptible to analysis in these terms. While much of the apartheid period was characterized by deference, signs of a systematic shift in this attitude began to appear in the mid-1980s, against the backdrop of a broader protest movement and the increasing weakness and reformist inclinations of the government.¹⁷ (The point should not be over-stated; other key judgments at this time, conversely, reinforced the pro-security line.) The success of the judiciary in post-apartheid South Africa can also be understood in terms of strategic decisions about when to assert judicial power and when to retreat in order to avoid a destructive clash with the powerful ANC government. Theunis Roux’s recent book offers the most sophisticated analysis in these terms of the South African Constitutional Court, established in 1995. Roux argues that the new Court was useful to the ANC during the transition, but thereafter increasingly posed an obstacle to the ANC as (p. 212) an institution with meaningful independence and very extensive textual authority. In these difficult conditions, the Court succeeded in protecting its fragile authority by ‘compromising on principle’ in a few cases to avoid challenging the ANC’s interests too directly, and (more often) by adopting interpretations other than the best reading of the text if they would better serve its relationship with the ruling party or preserve its political room to manoeuvre. At the same time, it maintained its reputation as an independent forum of legal principle and bolstered its credibility by keeping the straightforwardly strategic ‘compromises on principle’ to a minimum and deciding in legally defensible ways most of the time. On Roux’s analysis, the South African case is one of a court successfully building authority by cautious strategy, as in Ginsburg’s Taiwanese case, with crucial support from civil society and the advantage of a government that Roux recognizes has displayed important (although in his view, declining) support for judicial authority.¹⁸

4.  From Survival to Supremacy

To this point, we have been considering the logic of quite a blunt equation. The executive is a threat, at least a potential abuser of power, and needs checking. The judiciary, constitution in hand, is the guardian that could provide that constraint. A judiciary that tries to do so must confront a difficult strategic choice about how far to push in expanding its often fragile power, and a difficult legal or moral choice about how far to be strategic. This is a common paradigm in contemporary political science literature, and as noted, it is a dominant way of thinking in the African context where the abuse of power by executives continues to be the chief cause for concern and much hope is placed in constitutions and courts as a means to curb that abuse. And it is, as we have just seen, a useful logic with genuine purchase in real cases. But it must be borne in mind that there are also significant complications to this logic.

Underlying this way of thinking is an assumption that increasing the level of independent judicial power is a good thing. That assumption might be justified by a very rosy view of courts. It might also be justified on the basis that the African power equation is so heavily tilted in favour of the executive that any increase in judicial power is to be welcomed. Arguments of both sorts seem to be of significant (albeit often implicit) weight in African discussions, as in many other systems worldwide. Courts are not always subject to much critical scrutiny, and even scholars who are well aware of the potential list of concerns with judicial power usually have bigger worries. H Kwasi Prempeh is illustrative here. He is more careful than most to note that ‘judicial review … is a double-edged sword’ and to recognize that ‘[t]he challenge is to ensure that judges in newly democratizing states exercise their new power so as to (p. 213) advance and deepen the transition to constitutional democracy’.¹⁹ But his chief concern remains the constraint of executive power. In fact, the chief respect in which Prempeh thinks judicial review is ‘a double-edged sword’ is not that judges might hold too much power and come to make too many decisions. It is that if judges are assigned extensive powers they will be subordinated by the executive and so turn into a ‘formidable instrument for legitimating authoritarianism’.²⁰ African history certainly justifies Prempeh’s concerns. But perspectives from further afield suggest that judicial power is not so unambiguously sound and unthreatening that one can just push uncritically for increases in independent judicial power. Extensive judicial power may seem a far-off dream in Africa today, but comparative examples suggest that could change quickly.

Latin America is again a useful counterpoint. Courts that (until quite recently) occupied rather precarious positions under dominant, dictatorial executives, as we saw, now sometimes exercise vast powers. And this rise in power has not been free of standard concerns about judicial power, that judges are making decisions they lack the democratic legitimacy, technical expertise, or institutional support to make in an optimal fashion. The same can be said about the rise to power of courts in other emerging systems, with India perhaps the most prominent example.²¹ Apparently, neither a history of colonialism nor recent authoritarian government precludes the possibility of a rapid rise in judicial power in a state.

How likely is it that the same pattern will play out in Africa? Naturally, the analogy with Latin America is inexact, perhaps most importantly because Latin American countries are generally richer and have more established judicial systems and much longer constitutional histories.²² Much also depends, of course, on the particular politics of individual African states. But these inevitable caveats aside, it is certainly not far-fetched to think that the sorts of factors that have been important in the rise of Latin American and South Asian courts might also operate in Africa.

One factor is an expansive constitutional text, underwriting correspondingly expansive judicial authority. As noted, African systems are increasingly adopting such texts. Another is political fragmentation. If political authority is divided, this may create political space for courts to act where the political branches cannot, or make it harder for political actors to form the necessary majorities to thwart judicial assertions of power, or make political actors more reliant on judicial authority as an arbiter for their institutional disputes. These have been important factors in the rise of very powerful (p. 214) courts such as the Indian and Israeli Supreme Courts.²³ A third point is pressure for social justice. If governments are not responding to public demands for change and courts step in, courts can attract significant public support. Political actors themselves may favour this activity if they are frustrated with dysfunctional bureaucracies and see the courts as the only way to get something done, but they will at least find it politically difficult to oppose successful or popular efforts by courts to pursue social justice. Dynamics of this sort will be all the more significant in systems like India that also show significant degrees of political fragmentation, because it will be harder there for political institutions to get things done. Such dynamics are at least a realistic possibility in many African systems.

If factors conducive to an expansion of judicial power could be present, what about factors constraining it? Questions of access to justice will arise here. Since courts need cases to act expansively, it might be thought that factors like poverty, illiteracy and legal illiteracy, and weak civil society activity will conspire to make large-scale judicial power unlikely in many African contexts. There is also some history of courts themselves adopting restrictive approaches to standing and jurisdiction and thus stunting litigation, as was true for example in Kenya until the liberalization of the 1990s.²⁴ This is a perfectly real obstacle, but comparative examples suggest it is not an insuperable one. Systems in Latin America and South Asia also experienced these conditions and judicial power expanded nonetheless, and a key reason is that there is a good deal that can be done to respond to these obstacles. Innovative access to justice mechanisms, like India’s Public Interest Litigation (PIL) mechanism and Colombia’s tutela, work in various ways to expand access by making cases easier and cheaper to bring.²⁵

Benin is a particularly instructive African example here. Citizens may bring rights violations to the attention of the Benin Constitutional Court simply by writing a letter. The costs of making the complaint do not exceed the price of the letter and the stamp; no lawyer is required; and the Court itself takes charge of gathering evidence, usually by appointing a commissioner or rapporteur to investigate and report back to the judges.²⁶ The parallels to Indian PIL in particular are striking, though Indian PIL has evolved considerably since its inception around 1980, and Benin’s system remains new and limited by comparison. Armed with such techniques, a court can generate a significant case load and respond to complex problems even if the population it serves generally has a difficult time accessing formal legal mechanisms—as the emerging human rights docket of the widely admired Benin Court shows.

African scholars should therefore take more seriously the possibility of judicial supremacy, in which courts exercise extensive independent authority that other (p. 215) branches find difficult to check. As we saw, even a discussion like Prempeh’s is not concerned with this: it sees only judicial subordination as the ‘bad’ side of judicial authority and is content to treat genuinely independent judging as the ‘good’.

Africans are hardly unaware of the dangers of excessive judicial power, which are very familiar: as with a powerful executive, there is no guarantee that courts will exercise their powers for the best, even if they have good intentions. Furthermore, again as with powerful executives, even the benevolent exercise of power is not an unqualified good if the effect is to damage or stunt other institutions. Extensive judicial authority may come at the expense of legislatures and democratic processes more generally, for example. The point, instead, is that African discussion seems to treat these concerns as rather remote and does not currently feel the need to take them into account—whereas if the arguments of this chapter are right, judicial supremacy may be a more imminent concern in at least some African states than is commonly thought. Even though executive dominance is indeed the most important problem today, an overweening focus on constraining executive power may lead reformers to establish systems poorly placed to respond to the future possibility of judicial supremacy.

The issue of judicial appointment procedures offers an important illustration. From an executive-phobic perspective, the chief concern is that executives will use their appointment power to undermine the independence of the courts. Scholars thus favour reducing executive influence in appointments. If we have one eye on the dangers of judicial supremacy, however, we might wish to balance this concern against the worry that too little political control over the appointment power removes an important check on judicial supremacy. The fact that the very powerful Indian judiciary controls its own appointment process is telling, and has prompted concerns of cronyism. It is of course very difficult to decide how much of a concession to make to future concerns, at the risk of inadequately checking a looming executive, when designing a mechanism for judicial appointments. But the point is that it is a real choice, with countervailing considerations on both sides.

There are some emerging signs of African scholarly concern with the prospect of excessive judicial power. In the Nigerian context, for example, it is a theme of discussions of the political question doctrine, whose status there has become uncertain. Enyinna Nwauche has argued that ‘writ large in the demise of the political question doctrine in Nigeria is the direction of judicial review in Nigeria’ and it should prompt recognition of ‘the need to examine the nature of judicial incursion into the affairs of co-ordinate branches’.²⁷ Nwauche notes the ‘supremacist tendencies of the Nigerian judiciary’ in the fourth republic, borne in part of the judges’ significant public popularity—in line with the comparative arguments made earlier.²⁸ That such questions are beginning to be raised in African discussions gives weight to the claim that judicial supremacy may be becoming a real concern. But this remains uncommon. The focus instead is usually on arguments like Joel Ngugi’s, who supports a political (p. 216) question doctrine in Kenya to respond to the threat of ‘judicialization’ and to help courts avoid policy questions, but does so in order to avoid the awkward scenario in which courts make orders in these domains and the executive declines to enforce them, damaging their authority—the much more common concern for judicial survival.²⁹

5.  The Possibility of Virtuous Alignment

If judicial power is not always an unqualified ‘good’, it is also true that executive power is not always ‘bad’. The point may seem too obvious to be worth making, and too much a matter of chance to place much reliance on, but it should not be too quickly dismissed. The preceding arguments have assumed that the judiciary and the executive are significantly opposing forces or—as in those cases of judicial subordination where the judiciary is the executive’s puppet—that an alignment between the judiciary and the executive is something that sounds suspiciously like coordination and should be avoided. In other words, these arguments see a healthy opposition between the different branches of government as desirable. They are therefore suspicious of alignments, which smack of subordination and weaken the vital checking powers of opposing forces that is central to the separation of powers. In rounding out this chapter’s argument, however, it is important to see that this conclusion is too quick. Not all ‘alignments’ between the executive and the judiciary are created equal.

A classic piece of analysis of courts in the US context offers a helpful starting point in examining African examples here. The argument, usually traced back to Robert Dahl’s canonical 1957 paper on the US Supreme Court, holds that courts seldom adopt positions that are significantly and persistently out of step with the dominant political forces of the moment.³⁰ It may, of course, be that there is no dominant political force, as in the examples of politically fragmented systems such as Israel and India over much of the last forty years already considered, and in those cases a different logic can prevail. But to the extent that it exists, the idea that a highest court is ‘inevitably a part of the dominant national alliance’, at least when there is one, is amongst the oldest insights about courts offered by political scientists.³¹ We should not, therefore, be very surprised if courts in Africa also follow this pattern, and either stay quite close to the positions of the powerful executive or at least refrain from significant conflict with it. In doing so, these courts are not necessarily being especially craven or strategic. They might just be being normal courts.

(p. 217) In a continent where executive power is often abused, the immediate reaction to this may be concern and regret: if courts do not check executives, who will? Optimistic views of courts and rights encourage that reaction, as does the vision of courts as national moral guardians. But what if the executive adopts good stances? What if the dominant political forces have a significantly positive agenda? In such a scenario, we would not necessarily regret a situation in which the judiciary tended to stay close to the dominant political line. If both branches were committed to approximately the same welcome direction, we might not regret that they were both pulling together instead of opposing one another. This is the possibility of a virtuous alignment. Unlike judicial subordination, the judiciary is meaningfully independent, but unlike the various stages of judicial survival or judicial supremacy, the judiciary’s relationship with the executive is not, at bottom, a hostile, zero-sum game of rivals, because both institutions wish to head in roughly the same direction.

Relying on this sort of virtuous alignment might seem at first glance to be like relying on benevolent dictatorships, what Kwasi Prempeh has aptly referred to as ‘hoping for a Lee Kuan Yew’.³² But there are key differences. A scenario of alignment implies an independent judiciary, and so the possibility of meaningful institutional checks on power is still present in the system, if needed. That is the possibility notably absent from the benevolent dictator scenario. Furthermore, if it is true that courts usually hew quite close to the dominant political alliance, and if it is also true that courts that take on powerful executives squarely often suffer significant backlash, then court-built success without an important degree of virtuous alignment might be an unlikely thing. After all, there are many schools of thought which depend on the possibility of trusting institutions other than courts to do valuable constitutional work: dialogue theory and its predecessors in accounts like Bickel’s democracy-forcing interpretations; constitutional experimentalism; collaborative and deliberative approaches to litigation; accounts placing constitutional emphasis on popular mobilization, or on legislation and other instruments besides judicial decisions; and so on.³³ The possibilities presented by this body of work are under-explored in the African context, and this reflects not only the historical implausibility of trust but also that prevailing concepts are closed to the possibility of it. In other words, it might be that alignment is an ordinary route to (p. 218) successful constitutional functioning, something that importantly accounts for historical and contemporary examples of it—in contrast to dictatorship, which is ordinarily, on the basis of its historical examples, a route to something else and only very extraordinarily has some meaningfully benevolent consequences. An examination of three of Africa’s most admired constitutional states to date offers support for the alignment argument. Botswana, Benin, and South Africa are all classed amongst Africa’s success stories, albeit with caveats in each case.

Botswana has long been recognized as a virtuous exception of good governance on the African continent. It is, however, a case in which the role of the constitution and the judiciary in producing this result is debatable. Analyses of Botswana’s success tend to highlight its political leadership, and its historical luck in having extensive diamond deposits discovered just after the departure of a British colonial power that had interfered relatively little in its governing arrangements compared to other colonies.³⁴ The judiciary is not usually prominently cited in these explanations, and by contemporary standards the High Court and the Court of Appeal are not expansive institutions. Judged by the same standards, the Botswana constitution is not especially expansive either. It does not include socio-economic or cultural rights, and contains quite extensive immunities for the president against civil claims brought against him in his private capacity, which the courts have upheld.³⁵

This is not to argue that Botswana’s courts are unimportant. There is general recognition that they are substantially independent.³⁶ Charles Fombad observes that ‘what sets Botswana apart from most other African governments’ is the degree to which ‘the courts regularly review and invalidate irregular and illegal executive and legislative acts’.³⁷ The very fact that President Khama has recently moved to claim a greater role in judicial appointments implies that the executive sees the courts as an important source of power.³⁸ But Botswana seems an example in which executive attitudes, rather than independent judicial authority, have been the decisive factor in the state’s stability and compliance with the rule of law. The fact that Botswana’s rights record has been called into question in areas where the executive’s stance is also questionable—such as minority cultural rights—may speak to the limits of the constitutional text, but it also speaks to the limits of power outside the executive more generally, including in Page Id: 218ReferencesConstitution of the Republic of Botswana: September 20, 1966 (as Amended to December 2002) (Botswana [bw]) OCW(p. 219) the courts.³⁹ Botswana’s judiciary appears to have stayed close to the stance of the dominant political grouping, in line with Dahl’s argument.

Botswana’s neighbour, South Africa, has been admired for a much shorter period, but its Constitutional Court enjoys a considerably higher global profile. The 1996 constitution is expansive by any measure, and the Constitutional Court is widely applauded for a number of high-profile decisions on the death penalty, Lesbian, Gay, Bisexual, Transgender/Transsexual and Intersexed (LGBTI) equality, socio-economic rights, and democracy. As such, it is often seen as an example of the power of independent judicial authority—tempered, to the extent that one follows Roux’s argument, by the recognition that pragmatic strategy has been a necessary accompaniment to the principled boldness of its famous decisions.

However, what is seldom acknowledged is that the Court’s most celebrated progressive decisions have been largely in line with the policy positions of the ruling ANC government. The judgments often build on pre-existing legislative activity or on ideas with pre-existing public support from the ANC and others. The Court has indeed made high-profile decisions against the government, but the fact that this has not come at the cost of constitutional stability or led to backlash is above all a result of the fact that, come the crunch, South Africa’s presidents have chosen to accept judicial rulings.⁴⁰ It is true that the Court has shown political awareness and diplomacy, is usually scrupulous about the limits of its institutional authority, and has written some ground-breaking judgments, so it should receive its share of the credit. But it also illustrates the mistake of treating the executive only as a threat. Instead, rather like Botswana, South Africa is a state with a dominant political force that has regularly taken admirable positions (while also, of course, being the subject of a number of justified criticisms and concerns as well). That South Africa’s constitutionalism is the more expansive of the two does not affect this basic claim.

As with Botswana, the conclusion is hardly that the South African courts have been unimportant. A case of virtuous alignment implies independent judicial power and the possibility of the courts acting as checks on the executive, and my arguments do not at all preclude the idea of courts serving as everyday checks on executive activity or deny that this has been an important factor in both Botswana and South Africa. However, the larger-scale dynamic of the South African state is of the judiciary building on the work of the executive (and political power more generally) at least as much as constraining it. It also means that the stance adopted by powerful executives in the South African case is once again much more important in explaining the success of South Africa’s constitutional democracy to date than any fact about its courts. In both Botswana and South Africa, there is a great and unanswered question about what would happen if the courts and the executive really were to clash squarely in a protracted manner, and what is most significant for present purposes is the simple fact that this question is still largely unanswered.

Page Id: 219ReferencesConstitution of the Republic of South Africa: December 16, 1996 (as Amended to February 1, 2013) (South Africa [za]) Act No 108 of 1996, Government Gazette Vol 378, No 17678, 18 December 1996 OCW(p. 220) Finally, consider Benin, the constitutional success story of West Africa since its National Conference in 1990. The Benin Constitutional Court has built some of its reputation by responding promptly to rights violations, no matter how small. Observers tend to agree, however, that its role in deciding electoral disputes and arbitrating disagreements between the branches of government have been the real keys to its status.⁴¹ In both respects, the stance taken by political leaders has been very important. In the electoral context, the most threatening situation arose in the wake of the 2001 elections. The Court appears to have fulfilled its role of election monitor less than adroitly, first excluding the results of an entire province and then reversing course. The final result, however, was not a wave of post-election violence or a coup or even a long-standing dispute hampering governance. After the second- and third-placed candidates declined to participate in the run-off, the fourth-placed candidate, Adrien Houngbédju, agreed to do so in order to preserve the form of election procedures. Even more importantly, all sides accepted the ultimate win for former President Kérékou.⁴² As a result, the 2001 elections look somewhat like their US counterpart the previous year: though the story is troubling and the role of the judiciary in the story is a source of concern, the matter was resolved without serious repercussions because political leaders accepted the result relatively quickly rather than provoke a deeper crisis. Executive respect for the basic rules of the game was also on display in 2006 when both Kérékou and former President Soglo respected constitutional restrictions that precluded each from running for the presidency again. Such concerns have now arisen again in response to President Yayi Boni’s moves to revise the constitution to permit him to serve a third term. But in Benin’s case we can be much more confident than is generally the case that these attempts will wilt in the face of precedent or, if acted upon, that the voters will resist the attempt just as Senegalese voters thwarted President Wade’s bid for a third term in 2012. A similar ‘enough is enough’ movement has already emerged in Benin.⁴³

These features are arguably to be traced to features of Benin’s politics more broadly. At times, the political system has been relatively fragmented, with many fluid coalitions that make radical agendas hard to pursue. Civilian political activity has also played out against the backdrop of the threat of a military coup, of which Benin has a history, although that threat has been receding as the distance from 1990 grows. The possibility that irresponsible politics might provide the military with a pretext seems to have encouraged responsible politics among civilian leaders. That behaviour now serves as its own precedent, as does the legacy of the founding National Convention.⁴⁴ Benin too, therefore, offers no grounds to denigrate the contribution of courts, but once again (p. 221) seems to confirm the paramount importance of executive attitudes and political trends more generally in underwriting constitutional success. As one study puts it, Benin over-performs relative to its history and socio-economic status due, in large part, to a ‘different “spirit” of constitutionality’.⁴⁵

Just as the argument about judicial supremacy did not imply that it was wrong to worry about executive supremacy, so the argument about virtuous alignment does not imply that we are wrong to worry about establishing judicial checks on the executive or trying to establish judicial power in executive-dominated systems. It only asks us not to treat this suspicion as a default reflex that blots out the possibility of more admirable executive action. It also does not change the fact that if the conditions for a virtuous alignment are not present reformers and judges will simply have to do the best they can. The lesson here is more subtle. As argued earlier, concerns about judicial supremacy give us a reason not to act in response to executive supremacy in ways that would prevent a system from reacting to the excessive exercise of power by the judiciary—for example, when it came to thinking about appointment procedures. In a similar fashion, the present argument tells us that a virtuous alignment might well be a route to ordinary constitutional success that reformers should be trying to reach—and if so, they similarly have a reason not to act inconsistently with that goal. In particular, this would suggest that, no matter how strong the calls for bold rights decisions and the need to pressure executives, it might be a mistake for a judiciary to depart from a general default premise of distrust in relation to the executive—even if they could get away with it from the perspective of judicial survival. The value of the more dialogic, multi-institutional approaches to constitutionalism is considerable, and so too, therefore, must be the argument for courts and their supporters to work to establish them when they can.⁴⁶ To repeat, no one in Africa is wrong to worry about the abuse of executive power. But if constitutional success is often a matter of establishing constitutional partnerships, then always treating every executive as a power-abuser may be a mistake, and a missed opportunity to build trust. Sometimes, the reality of executive behaviour may give us no choice but to be distrustful, but when it does offer other possibilities, we should be alert to them.

6.  Conclusion

This chapter has worked with ideal types, and moreover has conducted its analysis with a broad brush. In reality, systems combine different aspects of subordination, survival, supremacy, and alignment over time and across issues, and the details matter. In this context, the argument of this chapter has been a limited one. Executive power is the threat of the moment, and so there is an understandable emphasis on independent judicial power to stand up to that power. That emphasis is hardly misplaced and analysis conducted on this basis remains very important for Africa today (and for understanding the Africa of yesterday). Few courts can ignore the imperatives of (p. 222) judicial survival, and African courts certainly cannot. This holds true even for the most stable systems, like Botswana, and the most celebrated ones, like South Africa, given the presence of dominant parties in both countries.⁴⁷ The study of courts in Africa therefore must indeed remain alive to concerns of judicial subordination and must be informed by a pragmatic awareness of the strategies and realities of judicial survival. An increase in meaningfully independent judicial authority will be welcome in most if not all African systems, and we might well, therefore, treat any increase as a piece of welcome progress in an uphill task. But there are other possibilities, represented in this chapter by the ideas of judicial supremacy and virtuous alignment, which might be less imminent or dominant in Africa today but which comparative analysis suggests are not far-fetched possibilities either. We should be careful not to lose sight of them when we think about constitutional design or seek to understand African constitutionalism. Although it may nowhere be more tempting to be generally suspicious of all political limits on judicial power and all alignments between the judiciary and the executive, critical observers should keep a healthy distance from the image of the executive as, at best, the villain in waiting and the judiciary as the looked-for guardian at the gate who we hope will be strong enough to prevail. Constitutional reformers cannot hope to be fortune-tellers. But the fact that these other possibilities are real is a reason to be cautious about sacrificing on the altar of the strongest concerns of the moment the ideas and institutions that might be needed to build healthy constitutional systems in the future.