Judging Judiciaries

In the last decade, African judiciaries have increasingly offered progressive judgments that have advanced and strengthened the state-building process. In Kenya, for example, the court's decision to dismiss the outcome of the 2017 election that saw a victory for incumbent president Uhuru Kenyatta, pointed toward its independence from the executive branch. Equally in Malawi, the judiciary’s decision to nullify the 2019 election result and compel a rerun to take place was hailed as a signal of a more empowered third arm of government.

While there have been positive developments, particularly around elections, judiciaries across Africa still face a plethora of challenges even in this area. Fractious elections with no quotient of integrity were legitimized or validated by constitutional courts in Guinea (2020) and Mali (2018), with both since experiencing coup d’états. But the challenges also extend to encompass corruption, political interference, and capacity gaps.

Corruption has become endemic in judiciaries across West Africa. In Nigeria, the antigraft agency, the Independent Corrupt Practices and Other Related Offences Commission’s Nigeria Corruption Index ranked the justice sector as the most corrupt with a score of 63 (on a scale of 0 to 100). Authoritarian efforts to weaponize the judiciary as a tool to control opponents is in evidence in places like Benin and Nigeria. Appointment processes are an area of frequent manipulation. President Patrice Talon of Benin appointed his friend Joseph Djogbénou the head of the Benin Constitutional Court, a position he has relinquished in July in a move many pundits believe was to prepare to run as a candidate in the legislative election. At the same time, an anti-corruption court established by President Talon in Benin has focused efforts on bringing cases against prominent government critics. In Nigeria, former chief justice Walter Onnoghen was removed few weeks into the 2019 general elections in what he later explained away as rumors of him meeting with the opposition presidential candidates.

Judicial interference has not just led to judgments that undermine democracy, but has also limited the ability of court officials to act independently for fear of reprisals. The murder of Democratic Republic of Congo (DRC) judge Raphael Yanyi, who was the presiding judge in a trial where corruption allegations were leveled against the president’s chief of staff, is an extreme example. But a lack of security of tenure is fast becoming a challenge. South Sudan’s president, Salva Kirr, dismissed 13 striking judges trying to force a reform in the judicial system without following procedures. Fears that judges can be summarily dismissed across the continent have been flagged as an area of growing concern by democracy watchers.

Capacity challenges also inhibit the work of judiciaries across Africa. They are poorly funded, lack the basics required to digitize court cases, and are chronically overworked. For instance, the Ugandan Court of Appeals has 11 judges with a workload of almost 8,000 cases. Justice delayed is justice denied. In places like northwest Nigeria and Burkina Faso the failure of the justice system to operate normally, has led individuals and groups to seek justice for themselves through vigilante style-organizations.

A holistic strengthening of democracy in Africa goes beyond holding credible elections—efforts to empower and build the capacity and credibility of judiciaries are a critical component in building more accountable state structures.

Idayat Hassan is a senior associate (non-resident) with the Africa Program at the Center for Strategic and International Studies in Washington, D.C.

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