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 of 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 of 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 of the matter in controversy;
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