Judicial independence at the regional and sub-regional African courts

• Pages: 388-407
• Record Number: sapr1_v29_n2_a9
• Author: Mia Swart
• Published date: 01 January 2014
• Date: 01 January 2014
• DOI: 10.10520/EJC-797865062

BA LLB LLM PhD. Professor of International Law, University of Johannesburg.

*

Terhechte ‘Judicial accountability and public liability – The German ‘judges privilege’ under the

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influence of European and international law’ (2012) German LJ 313.

Judicial independence at the regional

and sub-regional African courts

Mia Swart*

Abstract

Qualified and independent judges are essential for the legitimacy of the

Courts. African regional courts will only contribute to the rule of law if the

courts are legitimately com pose d. The pu rpose of th is article is to

consider whether judicial independence at the African regional and sub-

region al cou rts ha s con tributed t se tting s tanda rds fo r the ru le of law in

Africa. T he foc us will b e on th e African Court o f Hum an an d Peop le's

Rights as well as the courts of the most prominent subregional

communities. Because of the influence of the African Commission the

composition of this body will also be considered.

1 Introduction

An independent judiciary and the associated consistent implementation of the

principle of separation of powers are important characteristics of the transition to

the rule of law. What standards would be standards that strengthen the rule of

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law? The promotion of human rights would be one such standard. Other factors

that are particularly relevant in setting standards for the rule of law include the

enforcement of judicial decisions, judicial independence and coordination and

coherence between the various regional and sub-regional African Courts. The

purpose of this article is to ask whether judicial independence at the African

regional and sub-regional courts has contributed to set standards for the rule of

law in Africa.

It can be argued that the African regional and sub-regional courts will only

contribute to the rule of law and to standard-setting if the Courts are legitimately

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Shany ‘Assessing the effectiveness of international courts: A goal-based approach’, available at:

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http://portal.i dc.ac.il/He/scho ols/Law/about_us/Documents/Assessing_the_Effectiveness_of_Int

ernational_Courts.pdf (accessed 2014-08-26).

Ibid.

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Formal independence involves the question of whether the judicial appointment procedures at the

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various courts require judges to be independent. A judge displays substantive independence if

she/he acts independently and impartially in a concrete case before her/him.

See the Statutes of the ICTY, and ICTR and ICC and the Statute for the Special Court for Sierra

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Leone in this regard.

Article 2 of the Treaty for the Establishment of the East Africa Community as amended on 14

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December 2006 and 20 August 2007.

composed. The African regional court that will be considered in this article is the

African Court of Human and Peoples’ Rights. The sub-regional courts that will be

examined include the courts of the most prominent regional economic

communities such as ECOWAS, the East African Community and the Southern

African Development Community (SADC). Although not a court, the African

Commission on Human and Peoples’ Rights will be considered because of its

significant role in the African human rights system.

Qualified and independent judges are essential for the legitimacy of the

Courts. Yuval Shany explains the connection between judicial independence and

legitimacy. He writes that judicial independence increases the legitimacy of

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international court decisions and ‘strengthens the court’s overall legitimacy

capital’. It is important for a court to build up initial legitimacy capital as a

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structured asset held by the court in question. Such initial capital can later be

affected or eroded by perceptions of the procedural fairness of the court and its

judicial process. In the case of the African regional courts it seems that the courts

have built up such initial capital. The reason f or this is that the cou rts have

complied with some of the basic requirements of the rule of law. The founding

documents and treaties of the courts refer to democracy and the rule of law. It will

be argued in this article that the judges of the courts have displayed a high level

of independence. Once the courts become more active it will be possible to

assess the extent to which the initial capital is still intact or has been eroded.

In assessing the judicial independence of judges at the regional African

courts, a distinction has to be made between formal independence and

substantive independence. Formally, all the founding documents of the regional

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courts claim that the judges of the courts are independent. The foundational

documents use phrases typical of modern constitutional documents of

international courts, that the judges of the court should be ‘persons of proven,

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integrity, impartiality and independence and who fulfil the conditions required in

their own countries for the holding of such high judicial office or who are jurists

of recognised competence in their own countries’ (the wording in the Treaty for

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the Establishment of the East African Community). Judges are also required to