“A court is the guardian of justice, the cornerstone of a democratic system based on the rule of law. If the state does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses, and chaos ensues”- Dunstan Mlambo – Judge President of the Gauteng Division of the High Court of South Africa.
African governments have a bad habit, when it is not in their interest they ignore the law, specifically they ignore the courts. Governance and the rule of law is well recognised as a crucial component of development, the African Union even has the African Charter on Democracy, Elections and Governance. One of its core objectives is to ‘Promote and enhance adherence to the principle of the rule of law premised upon the respect for, and the supremacy of, the Constitution and constitutional order in the political arrangements of the State Parties’. Although tellingly only 10 African states have actually ratified this particular charter, symbolising African governments commitment, or lack of, to the rule of law.
The rule of law is crucial, it is the foundation upon which stable societies are based. When it works it is how criminals are punished and injustice is rectified. It provides for trust in contracts so that people can do business with each other and it keeps power in check, restraining government from abusing its citizens. The primary arbiter of law and order is the judicial process, the courts not only need to be independent, but their orders and rulings need to be adhered to, if not they may as well not make them.
When governments ignore court orders, they send a signal, that the law is not for them that the law is tool to be used to benefit of those with power rather than to protect all.
Development on the continent will require the rule of law that applies equally to all including the government, the problem is the police that courts rely on to enforce their orders are controlled by the government. To enforce the rule of law, courts in Africa will require more than the hope that government will respect the independence of the judiciary. Rather Africa should give its judges some teeth, the ability to enforce its orders whether the government likes it or not.
The Rule of Law – Except for the Rulers
‘Rule of law’ is a statement that gets used a great deal, African presidents, civil society, global institutions and development economists are all fond of using it and outlining its importance, but what does it mean?
The Secretary General of the UN has defined rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards”[1]
Its importance to development is crucial because it covers several areas. Preventing and mitigating crime and insecurity, protecting the environment, labour, property, creating a trustworthy commercial environment with security of contracts and protection from fraud, protecting human rights, reducing corruption and holding power accountable all rely on the rule of law. Without a system where everyone is treated equally by fair and independent adjudicators, they become arbitrary, those in power exercise impunity, doing business becomes an exercise in avoiding getting screwed (or screwing over the other guy first) and people’s rights, property and persons are under constant threat. Unfortunately, across much of Africa the rule of law does not hold as it should, and often it is the government at the forefront.
When governments ignore the law, they send a dangerous signal to the whole country. That the law is a tool of domination for those in power to get what they want and that the law is a mere suggestion rather than a restraint. This creates the flagrant disregard for the law and impunity that enables corruption, criminals and the everyday behaviour (such as disregard for traffic laws) that has become the norm. And it is why often people resort to mob justice rather than trusting the police and courts.
Development is hard under conditions where the powerful exercise impunity and basic security cannot be ensured. Thus, the question becomes where do we begin with restoring law and order? It is not likely that those in power will conform to the rule of law without significant pressure or incentive, it is also not likely that the general populace will suddenly conform to law and order when the police cannot be fully trusted, and those with power and wealth continue to display impunity. Thus, it is to the courts that we must turn and give them the ability to enforce the rule of law, particularly for those with power and wealth.
Enhancing Judicial Power
The courts are the adjudicators of the legal system and when sufficiently independent from the rest of the government they can make fair and reasoned judgements. The last couple of years has seen African judges show that they can hold power to account, and two momentous decisions showcase this.
In 2016 the Constitutional Court of South Africa told the president to ‘pay back the money’[2] for the upgrades to his home in Nkandla, on a continent where presidents have regularly used taxpayer money as their own it was refreshing to see a court put a stop to impunity. In 2017 the Supreme Court of Kenya[3] stunned the continent when it nullified a presidential election because of anomalies and irregularities in the results. Africans are no strangers to rigged and disputed elections to see a court find against a sitting president, say that it would not accept a tainted election and force the holding of a new election was novel and inspiring.
African courts can step up to the challenge if constituted properly as independent and fair. However, they rely on the government for their decisions to be enforced. Presidents and Ministers must respect and obey court orders and then the police must enforce them, unfortunately this is where the system tends to fall apart.
This was graphically shown earlier this year in Kenya when the government flagrantly ignored court orders and shut down TV stations and deported an opposition politician making a mockery of the rule of law.
This sort of thing happens around the continent such as in Nigeria, Uganda and South Africa, and to put a stop it we should give judges the power to enforce their orders and decisions, to do that they will need their own enforcement agency, a judicial police force. This force should be placed under the control of the judiciary alone, with a guaranteed budget, and a narrow but important mandate to serve and enforce court warrants and orders where the police prove incapable or unwilling to do so. Creating this independent judicial force would have three goals.
First, it will be a tangible force behind the authority of an independent judiciary giving it the ability to challenge impunity. Secondly, it bypasses the political control and rationale behind the police which in Africa are usually centralised and controlled by politically appointed ministers, meaning that the police answer to their political masters first rather than the law. Thirdly, it will help restore confidence in the courts and the law, if people see the law being enforced it is a powerful incentive to place their trust in the law and not to break it. It is not a replacement for the police, nor is it a power grab for the courts rather it is a way of strengthening rule of law by enhancing the ability of the adjudicators of the law to make sure that its legal orders are carried out.
Giving Judges Teeth
It may seem like a bit of crazy idea, police that answer to the courts. However, that is a function the police are supposed to serve but typically do not in Africa. The courts have shown that when judges are chosen in an independent, public and multi-stakeholder process they can make fair and independent decisions, but when those decisions are ignored or not enforced it enables impunity and criminality.
If African leaders and policy makers are truly in favour of law and order as they are fond of declaring, then they must take steps to ensure that the decisions of the courts are enforced. A potentially effective solution is to give the courts their own police to enforce those orders, bypassing politically compromised police and giving them the ability to tackle impunity. The laws governing society are the foundation of stability and good governance. Ending impunity and enforcing the rule of law will provide a firm foundation for development, when people trust the law and power is limited by the law it ensures that all can be treated equally in a secure society. The courts are at the core of this, if Africa is serious about law and order it is time to give our judges some teeth with which to enforce it.
[1] https://www.un.org/ruleoflaw/what-is-the-rule-of-law/
