Africa, Credit: Shutterstock

Judicial independence in Africa, while still flawed, has increased over the past few years, and some countries are progressing better than others in this direction.

Only two countries in Africa, namely Botswana, and South Africa, were given a score of 100 in Global Integrity Africa's 2020 indicators, with Namibia and Tunisia close behind with scores of 75.

A score of 100 "means that judges in these countries have guaranteed autonomy and operate without fear or favor," said Darryl Bernstein, partner and head of dispute resolution at Baker McKenzie Johannesburg.

Fifteen countries were given a score of 50 in the index, which means judicial independence is sometimes restricted, and the judiciary is sometimes subject to incentivised decision making.

"Nine countries scored zero, which means judges rarely have autonomy and are often exposed to positive and negative incentives when making decisions," said Bernstein.

However, many courts in Africa now have the power of constitutional review.

Bernstein said the power of judges and courts to make impartial decisions is essential to enabling Africa to take its place on the global stage.

"In many countries the judiciary is controlled by the executive branch, who appoint judges, magistrates and prosecutors because of political loyalty and not merit."

Legal certainty

Strengthening the rule of law is an imperative in Africa because foreign investors will only ramp up their investments if they are confident no government can simply take away their assets on a whim, he said.

"Potential investors are not looking for guaranteed profits, but legal certainty simply allows them to assess opportunities and risks on a commercial basis," said Bernstein.

East Africa and Southern Africa have some strong justice systems, and investors often use this as a yardstick when doing business on the continent, said George van Niekerk, director for dispute resolution at ENSafrica.

"However, the fact that investors embed arbitration clauses in their contracts reflects a lack of trust in the judiciary, although sometimes unfairly so."

Africa needs precise, modern, reliable laws that are relevant to local requirements and their environment, which is not always the case, sometimes due to its colonial past.

"Mozambique, for example, still has Portuguese laws," says van Niekerk.

By 1900 much of Africa had been colonized by European countries, exceptions being Ethiopia and Liberia.

Colonial-era legal systems were designed to control the population and extract wealth from the colony back to the colonizing power.

The courts must insist, wherever possible, on a rigid adherence to the constitution of the land"

Laws in a number of African Commonwealth nations still mirror older British laws, and the judges continue to wear the horsehair wigs and robes of their British predecessors.

Rwanda, which was colonised by both Germany and Belgium at different times scrapped over 1,000 pieces of colonial era legislation in 2019

According to van Niekerk, South Africa has a strongly independent judiciary, largely due to its vibrant constitution.

There is also a separation of powers between parliament, the government and the judiciary and each must stick to its own sphere.

However, the judiciary is quite prepared to rule against the government executive and legislature if their conduct does not pass muster.

"For example, last month the constitutional court ruled that elements of the electoral act were unconstitutional," said van Niekerk.

"Also Pretoria high court Judge Norman Davis recently ruled that some of the government's lockdown regulations were unconstitutional."

A major step forward for the South African judiciary was the establishment of the Office of the Chief Justice in 2010, with its own substantial budget.

Since then, the selection, tenure, payment, disciplining and promotion of judges is independently managed by the Judicial Service Commission.

"Prior to that the judiciary had no say in managing its own staff," said van Niekerk.

Encouraging signs

Signs of progress with judicial independence are also evident in other parts of Africa, albeit at a slow pace.

For instance, in Malawi in February, the constitutional court annulled the controversial May 2019 election, and a new ballot was held on 23 June that shifted power away from the incumbent president.

This was despite the latter's attempts to delay the election, including trying to send the senior judges on leave, which failed.

The incumbent also tried to use the COVID-19 crisis as an excuse to stop the election going ahead and declare a state of disaster, according to Shabir Latif, managing partner at Sacranie Gow and Company, Blantyre, Malawi.

"But the human rights organisations took the government to court,"

In another recent matter, in Zimbabwe in May a high court overturned an exchange control directive that had unilaterally ordered the conversion of U.S. dollar bank account balances into Zimbabwe dollars at a fraction of their original value.

"When it happened in 2018, the directive wiped out billions of dollars of Zimbabwians' savings overnight," said Rudo Magundani, partner at Scanlen and Holderness, in the capital, Harare.

A paper once presented at an African Union judges symposium quoted a Nigerian judge as saying "the courts must insist, wherever possible, on a rigid adherence to the constitution of the land and curb the tendency of those who would like to establish what virtually are Kangaroo courts, under different guises and smoke-screens of judicial regularity…