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Part III The Relationship Between the Judiciary and the Political Branches, 8 Relationships with Power: Re-imagining Judicial Roles in Africa

James Fowkes

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 22 January 2021

This chapter examines the relationship between the executive and the judiciary in Africa. It identifies a particular tendency in African scholarship to see the executive as, at best, a potential threat, and the judiciary as the body that should serve as guardian against it. This prompts calls for more constitutional protections, greater insulation of judges from politics, and bolder judicial activity. Given the often sad history of the rule of law in Africa and the general dominance of executive power on the continent, this focus is both understandable and far from misplaced. However, it should not blind us to other configurations the separation of powers can assume. Comparative experience suggests that the judicial power can increase rapidly, a possibility that deserves to be considered in the African context. Executives may also pursue more admirable constitutional goals, and in that case a relationship of cooperation, not conflict, will be possible.

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