Gift Manyatera LLBS(UZ); LLM(Turin, Geneva); MSc CLEF(IUC Turin); - - PowerPoint PPT Presentation

Gift Manyatera LLBS(UZ); LLM(Turin, Geneva); MSc CLEF(IUC Turin); LLD(UP)

PRESENTATION OUTLINE

 Overview of Constitutionalism  Conceptions of judicial independence  Challenges and pressures on judicial independence  Standards on judicial independence  Elements of judicial independence

PRELIMINARY ISSUES

 African constitutional developments  ‘Third wave’ of democratisation in Africa  Judicialization of politics  What is constitutionalism?  democracy v constitutionalism  Constitutionalism- Two pillars  1. limitations imposed on the state and accountability

to citizens

 2. enforceability of these limitations

PRELIMINARY ISSUES

 Core elements of constitutionalism  i. recognition and protection of fundamental rights  ii. Separation of powers  iii. An independent judiciary  iv. Judicial review  v. Control of the amendment of the constitution

CONCEPTIONS OF JUDICIAL INDEPENDENCE

 Influence of American, British and French

constitutional models on post colonial African constitutional law terrain

 Article 127 of the Benin Constitution proclaims the

President as the guarantor of the independence of the judiciary

 Anglophone legal tradition  Francophone legal tradition  Lusophone legal tradition  Point to note: there is no consensus on what kind

and how much judicial independence is required

What exactly does an independent judiciary entail?

 Well, two things:  1. Institutional independence  2. Decisional independence.  Decisional independence has two basic elements:  i. Substantive independence  ii. Personal independence

Theoretical justifications: judicial independence

 Various schools of thought have explored the

theoretical justifications for the existence of an independent judiciary in a liberal democratic state.

 Broadly, there are three theory categories namely;  Separation of powers  Rule of law  Delegative theories

CHALLENGES AND PRESSURES ON JUDICIAL INDEPENDENCE

 political judges(e.g former Soviet Republics)  executive minded judges  independent minded judges  public minded judges

CHALLENGES AND PRESSURES ON JUDICIAL INDEPENDENCE

 Threats to judicial independence can be categorized as

internal and external

 Not easy to come up with an exhaustive list of threats.  Generally, an organization or person is a potential

threat to judicial independence if the entity or person:

 i) has the reason to get a judge or court to reach a

decision on grounds irrelevant to law

 ii) has sufficient resources- political, social and/or

economic to influence or intimidate a judge;

CHALLENGES AND PRESSURES ON JUDICIAL INDEPENDENCE

 iii) is capable of forming a will or intention to act in a

way that interferes with judicial independence

INTERNAL INDEPENDENCE

 Judges must be independent of colleagues including

their horizontal and vertical bosses

 ABSOLUTE INSULATION IS HOWEVER

UNDESIRABLE

 Consultations are desirable as long as they are advisory

in nature and never as authoritarian instruction!!!!!!

EXTERNAL INDEPENDENCE

 Judges must be independent of any outside

institutions such as;

 Legislative  Executive  Political parties  Legal profession  Press,  Civil society  Litigants  And any other forces outside the judiciary itself.

External independence

 Contentious issue of judges seconded to other

• institutions. Is this desirable????

INTERNATIONAL AND REGIONAL STANDARDS ON JUDICIAL INDEPENDENCE

 These standards are a form of soft law  These standards can be categorized as follows:  i) United Nations standards  ii) Regional and sub-regional standards  iii) Guidelines developed by legal experts and judges

UNITED NATIONS STANDARDS

 The Universal Declaration on Human Rights,1948;  The International Covenant on Civil and Political

Rights, 1966;

 The UN Basic Principles on the Independence of the

Judiciary(1985)

 The Basic Principles clarify the meaning and scope of

the notion of judicial independence

REGIONAL STANDARDS

 The Beijing Principles on the Independence of the

Judiciary(1995);

 The Tokyo Principles of 1982;  The Judges Charter in Europe of 1993;  The Caracas Declaration of 1998;  The Beirut Declaration of 1999;  African Commission Recommendation on the Respect

and Strengthening of the Independence of the Judiciary, 1996

SUB-REGIONAL STANDARDS

 The Universal Principles of Judicial Independence for

the SADC Region(2004);

 The Latimer House Guidelines on the Independence

• f the Judiciary(1998)

EXPERT GUIDELINES

 The Universal Charter of the Judge(1999),  The Bangalore Principles on Judicial Conduct(2002);  The International Bar Association Minimum

Standards of Judicial Independence(1982);

 The Syracuse Draft Principle on Independence of the

Judiciary(1981);

 The New Delhi Standards of 1982;  The Montreal Universal Declaration on the

Independence of Justice(1983)

JUDICIAL INDEPENDENCE STANDARDS

 None of these instruments defines what an

independent judiciary is

 HARDLY SURPRISING, THERE ARE DIFFERENT

CONCEPTIONS OF JUDICIAL INDEPENDENCE ACROSS LEGAL TRADITIONS

 From these diverse guidelines, the core elements of

judicial independence internationally recognized can be summarized as follows:

ELEMENTS OF JUDICIAL INDEPENDENCE

 (i) institutional independence,  (ii) the judges must have security of tenure,  (iii) the process of appointing judges must be free from

political machinations,

 (iv) the judiciary must be financially autonomous, and  (v) the judges must have some degree of

accountability.

THE END THANK YOU

INSTITUTIONAL INDEPENDENCE

 A distinction must be made between two aspects:  i) the independence of the individual judges and,  ii) the collective or institutional independence of the

judiciary as a body

 Perceptions matter!!!!!!!!

INSTITUTIONAL INDEPENDENCE

 Institutional autonomy entails that the

independence of the judiciary must specifically be entrenched in the constitution or some other laws

 Principle 1 of the UN Basic Principles on the

Independence of the Judiciary. Principle 1 states that ‘the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty

• f all governmental and other institutions to respect

and observe the independence of the judiciary.’

INSTITUTIONAL INDEPENDENCE

 Individual independence has two essential elements:  i) substantive or decisional independence  ii) personal independence- judicial terms of office and

tenure are adequately secured.

 Security of judicial office, removal from office and due

process of removal and discipline

INSTITUTIONAL INDEPENDENCE

 KEY PRINCIPLES- JUDICIAL AUTONOMY  1. impartiality/ decisional independence of the

judiciary,

 Principle 2 of the UN Basic Principles states that;

‘The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.’

INSTITUTIONAL INDEPENDENCE

 2. vesting adjudicative functions exclusively in the

judiciary

 Principle 3 of the UN Basic Principles states that the

judiciary shall have jurisdiction over all cases of a judicial nature

IMPARTIALITY

 A judge is answerable to the law and his/her

conscience only

 A judge is to hold the scales even and to adjudicate

without fear or favour

 The Bangalore Principles list a number of situations

when a judge should withdraw from a case to protect the impartiality requirement.

BANGALORE PRINCIPLES

 A judge shall ensure that his or her conduct, both in

and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.

 A judge shall, as far as is reasonable, so conduct

himself or herself as to minimize the occasions on which it will be necessary for the judge to be disqualified from hearing or deciding cases.

BANGALORE PRINCIPLES

 A judge shall not knowingly, while a proceeding is

before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process, nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue.

BANGALORE PRINCIPLES

 A judge shall disqualify himself or herself from

participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:

 (a) The judge has actual bias or prejudice concerning a

party or personal knowledge of disputed evidentiary facts concerning the proceedings; (b) The judge previously served as a lawyer or was a material witness in the matter in controversy; or (c) The judge, or a member of the judge’s family, has an economic interest in the outcome

• f the matter in controversy;