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“The Judiciary is the conscience of a nation, the guardian of every constitutional democracy!”

“The Judiciary Is The Conscience Of A Nation, The Guardian Of Every Constitutional Democracy!”

An urgent and radical paradigm shift of the prevailing mindset of many African Governments is required in relation to the status, independence and original role of the Judiciary.

By Moegeng Moegeng

Restoration of the lost glory of Africa presupposes the existence of a glorious era at some point in history. You cannot restore what never was. Associating Africa with civilisation, good governance and prosperity, which were some of the incidents of Africa’s glory centuries ago, is bound to draw scepticism from some quarters. This is so because very little has been done to uncover the exceptionally good side of Africa in years gone by.

Africa’s pioneering role in civilisation as well as the great scholastic and entrepreneurial strides it had made, have not enjoyed the prominence they deserve. For there is no denying that Africa includes countries like Egypt which was a leading civilisation centuries ago. As the historian, Will Durant, said:

The effect of what Egypt accomplished at the very dawn of history has influence in every nation and every age. ‘It is even possible’, as Faure has said, ‘that Egypt, through the solidarity, the unity, and the disciplined variety of its artistic products, through the enormous duration and sustained power of its effort, offers the spectacle of the greatest civilisation that has yet appeared on this earth.’ We shall do well to equal it.

Egypt thrived for thousands of years. It became famous for great cultural advances in every discipline including the arts, science and the superior technology that was employed in the construction of the globally celebrated pyramids. Its monuments reflect the depth and grandeur of the Egyptian success story which had a profound influence on many ancient civilisations like Greece and Rome.

Then, Egypt was well run and very prosperous. A century before the rest of the world began to work out the capability to write and read, Egypt had already done so. And it was to the Egyptian University of Alexandria, not of Athens, that the emperors turned for teachers required at the royal courts of the Roman Empire.

The literary treasures of Timbuktu in Mali, traceable to its tradition of scholarship in the twelfth century, the exploitation of mineral resources which earned Timbuktu its reputation as the city of gold, the entrepreneurial skills displayed and the prestigious Sankore University, also underscore the central role played by African countries in announcing civilisation and high quality education to the world.

The impressive stone walls of the Great Zimbabwe, then the main regional trading centre, bear testimony to the lost civilisation of the Shona people during the eleventh century. The advanced trading with gold, ivory, iron, fresh water snail, mussel shells, ostrich eggshells and a variety of agricultural produce that took place in the great and wealthy Kingdom of Mapungubwe in Limpopo, South Africa, and the artistic masterpieces of the Khoisan people of Southern Africa also bear testimony to the enormous potential, sophistry, wisdom and admirable entrepreneurial skills of the African people.

Sadly, more nuanced and sophisticated ways of exploiting our resources for the bene t of foreigners and the corrupt in our midst are still employed, with total disregard for the best interests of Africa.

The desire to restore Africa’s past glory ought to be fuelled by these observations by Cullingham:
Our great artist God has displayed these and other wonders in Africa… He hid more gold here, more diamonds, platinum, copper than in any other place on earth. Africa has enough arable land to feed a large portion of the earth. The continent has more hydroelectric potential than all the rest of the world put together, as well as abundance of coal and oil.

Wisely used by and for Africans, the continent’s resources could contribute significantly to new wealth and prosperity. Unfortunately, for too long Africa’s people have been enslaved, raped, abused, dismissed by prejudice or just ignored. Their rich resources have often been collected and used by others – even stolen – with little if any bene t going to the Africans. Instead their value has attracted foreign exploitation, enriching dictators and warlords, bringing bloodshed, starvation and even modern forms of black-on- black slavery.

Colonisation hurt Africa very deeply. Sadly, more nuanced and sophisticated ways of exploiting our resources for the benefit of foreigners and the corrupt in our midst are still employed, with total disregard for the best interests of Africa. Africa needs to arrest those forces that are hard at work undermining its development, and establish the good governance, peace and stability that are essential for its repositioning.

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Our commitment to the African renaissance must be encouraged by the success stories of countries like Singapore which was an appendage of Malaysia until 1965, when it gained independence. Singapore is a small patch of land, barren of any mineral or natural resources. It had nothing but a small population and a purpose-driven leadership of young intellectuals, desperate for Singapore’s survival and eventual attainment of national affluence. About fifty years down the line it has, against all odds, realised its vision to rise from the ashes of obscurity and near-nothingness to become a first world country. Its strategic geographic location does not quite explain its achievements. It is rather the vision and the unwavering commitment to its realisation that does.

The economic miracle of the once-colonised South Korea is slightly different but fundamentally comparable. Again, I say all this mindful of the facilitation and generous financial support by some of the world’s biggest economies. It will take the collective impact of the efforts of several key role-players to unleash the full potential of Africa.

Some of the challenges that contribute to big business’s lack of enthusiasm about investing in Africa, apart from historical prejudice, are corruption as well as maladministration and instability. Corruption in Africa is more than a mere irritation. Uprooting corruption will certainly strengthen democracy, create investor confidence and pave the way for sustainable economic growth, a booming economy, employment and poverty alleviation for our people. Peace and stability as well as the capacity to protect investments are of prime importance to potential investors.

Until there is an unwavering and demonstrable governmental commitment to eradicate corruption and crime in general, Africa will have to contend with sparse drizzles of investment here and there. These kinds of investments have not contributed much towards the realisation of the African dream of building strong constitutional democracies and globally competitive economies.

The need to eradicate corruption and strengthen corruption fighting institutions is urgent. As former United Nations Secretary General, Mr Ko Annan, stated:

Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life, and allows organised crime, terrorism and other threats to human security to flourish… Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a government’s ability to provide basic services, feeding inequality and injustice, and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development.
Given the profundity of corruption’s toxicity, a lot of attention must be given to and resources deployed for its eradication. If our commitment to uprooting corruption applies only to those who are not connected to the rich and powerful, peace and stability, the rule of law and sustainable economic development will remain a pipe-dream. The beneficial exploitation of our mineral resources and consequential value-addition, as well as the preservation and optimum utilisation of our natural resources for the common good of all, will also be virtually impossible.

Corrupt and untouchable Africans by themselves or in collaboration with the historical enemies of Africa’s progress, would like to continue to exploit Africa to satisfy their insatiable appetite and unquenchable thirst for wealth and power. This is possible when law enforcement agencies, especially the police and the Judiciary, are compromised and under-resourced as is the case in some African countries. One of the catalysts for the fulfilment of the African dream is the broader justice system – at the functional helm of which are the courts.

If our commitment to uprooting corruption applies only to those who are not connected to the rich and powerful, peace and stability, the rule of law and sustainable economic development
will remain a pipe- dream.

Not only must the police be properly resourced, but serious scrutinising mechanisms for evaluating the suitability of new entrants are crucial. Capacity-building programmes must be benchmarked against those of countries that are doing well in their crime-fighting endeavours. Merit, a good track record and a solid character must largely determine suitability for promotion. Investigations should not be manipulated and effective measures must be taken to safeguard their integrity.

Job security and security of tenure are necessary to embolden the police to discharge their duties fearlessly and vigorously. The same applies to our corruption-busting entities, the prosecuting authority, the intelligence community and institutions meant to undergird constitutional democracies like the ombudsman.

A genuine democracy comprises three arms of the State: the Executive, the Legislature and the Judiciary. To breathe life into the African dream, strengthen democracy, grow the economy and therefore recapture our lost glory, an independent, efficient and effective court system must be in place.

Several countries have finally come to terms with the constitutional reality that the Judiciary should never be relegated to the level of an imposter in the effective governance of a country or be regarded as an appendage to the Executive Branch of Government. Genuine separation of powers has been entrenched. The Judiciary has been given the resources necessary to develop the capacities essential for greater effectiveness and efficiency. And those countries have, without exception, been rewarded with peace and stability, good governance, prosperity and low levels of corruption. It is, however, true that some countries are doing well economically, notwithstanding their poor record on human rights, the rule of law and constitutionalism which is the natural consequences of their undisguised disdain for the independent functioning of the courts. But longer term stability is lacking.

The Judiciary is the conscience of a nation, the guardian of every constitutional democracy.

Lest we forget, the Judiciary is the conscience of a nation, the guardian of every constitutional democracy. And courts exist to administer justice to all persons alike without fear, favour or prejudice in line with the oath or affirmation administered to Judicial Officers on assumption of office. That role is seriously undermined when the Judiciary cannot guarantee the independence of both its institutions and its Judges. The Judiciary must be left to set its strategic objectives and priorities and develop a concomitant implementation plan without undue interference from the political arms of the State. That is the kind of independence that insulates the Judiciary from manipulation. Judicial independence is also at risk where there is no transparency in the appointment of Judicial Officers.

In our continent elections are either run by the Judiciary or the Judiciary bears the responsibility of expeditiously resolving or mediating fierce election- borne political contestations. Only a truly independent Judiciary is able to defuse such volatile situations. When the Judiciary has a reputation for impartiality and acts accordingly, even the losing party finds it relatively easy to absorb the pain of losing and accept an unfavourable court decision. Not so when the Judiciary is known to be beholden to a governing party, or some other political formation or allied interest group. A lack of judicial impartiality is a recipe for hopelessness and violent contestations that often culminate in war and instability.

When citizens and would-be criminals know that their country has an effective and efficient justice system and that arrest, prosecution, conviction and sentence for the guilty is predictable, then corruption and crime in general is significantly reduced.

In addition, those who might wish to take over power through unconstitutional means are deterred by the predictable response of an independent Judiciary to their unconstitutional actions. The capacity of courts to dispose of criminal, commercial and civil cases expeditiously is essential for unlocking major investment possibilities. Keeping disputes lingering on endlessly in the court system potentially has disastrous consequences for the public, business community and other litigants. It thus constitutes a damper to the willingness of big business to invest in any country where such incapacities obtain.

The African Judiciary has come to recognise the special role it has to play to contribute to the renaissance of Africa. To this end, the Conference of Constitutional Jurisdictions of Africa (CCJA), comprising the Heads of the highest courts in our continent, recalls in its Statute that the Constitutive Act of the African Union enshrines the commitment of Heads of State and Government “to promote and protect human and people’s rights, to consolidate democratic institutions and culture, and to ensure good governance and the rule of law”. The CCJA also undertakes to supplement the AU mechanisms to consolidate the rule of law, democracy and human rights. It goes on to recognise that the achievement of these objectives is “closely linked to the independence and impartiality of Judges”. The draft Memorandum of Understanding, soon to be concluded by the AU Commission and the CCJA, also goes a long way towards reaffirming the role of the Judiciary in the realisation of the African renaissance project. When the Judiciary is under unfair attack in any country, it must be a concern of regional bodies like the CCJA. We must be our brothers’ and sisters’ keepers.

Judicial independence is also at risk where there is no transparency in the appointment of Judicial Officers.

A closer examination of the institutional arrangements and the operations of the Judiciaries in successful democracies and leading economies is quite revealing. Adequate resources are availed to the courts. And the capacity of those courts to cope comfortably with the caseload continues to contribute significantly to the stability and vibrancy of the economy and democracy in those countries.

What are the key challenges that inhibit the effective and efficient performance of courts in Africa? Is the process of appointing Judicial Officers transparent and inclusive? Does the Judiciary in each African country enjoy the kind of independence which can insulate it from undue influence and corruption? Do Judicial Officers have real security of tenure or is their tenure short and renewable? Are they paid fairly well in relation to the fiscal muscle of each country? Do they have the essential tools of trade? Is there proper judicial self-governance in the area of court administration with own budget? Even if there is no self-governance, is the Executive or hybrid court administration system in place compatible with judicial independence and does it provide the support required? Is the court budget adequate for the execution of key court operations? Is there an effective judicial education system in place? Does the Judiciary broadly enjoy the confidence of the populace? If not, why and what should be done to address those perceptions or realities, as the case may be? Affirmative or negative answers to these questions are, respectively, important and reliable pointers to the independence of the Judiciary or lack thereof.

The institutional arrangements must reinforce judicial independence. Ideally the Judiciary must take full responsibility for court administration, particularly in relation to matters that are intimate to court operations, be able to determine the size and competence of its support staff complement, set its strategic objectives and priorities and execute them as determined by the Judiciary itself.

The Executive and Legislative branches of Government in Africa, from the national all the way down to the municipal level, run virtually every important facet of their business. Not so with the Judiciary. There is no defensible reason for not leaving the Judiciary to do what it is best placed and arguably best qualified to do, including the execution of administrative functions that are intimate court operations. Failure to do so is very likely to yield a weak, manipulable and corrupt Judiciary potentially available to the highest bidder. Given Africa’s position of historical disadvantage and marginalisation, we dare not take comfort in the similarity of our wrongs to those of well-developed economies, some of which were aided by imperialism to achieve their wealth.

It bears repetition that the Judiciary must never be made to look like an appendage of the Executive, dependent on it for the resources required to drive even strategic programmes like case management, court modernisation as well as performance monitoring and evaluation. It must claim and be allowed to occupy its rightful place fully as the third arm of the State.

The African Judiciary must identify and address the challenges that undermine the efficiency and effectiveness of the court system in the continent. That responsibility should be narrowed down to the regions and individual countries. Such an emancipation of all African courts would enable them to rise to an acceptable level of independence and develop the necessary capacities, for greater efficiency and effectiveness.

Peer review mechanisms among national and regional Judiciaries, as well as best practice and effective ways for the delivery of quality service, require urgent attention.

There is also a need to develop effective communication strategies to create greater public awareness about the Judiciary, its critical role and the enormous challenges it faces. Everybody is concerned about the snail’s pace at which criminal, civil and commercial cases often move. A disturbing public perception seems to be firming up that Judges and Magistrates either do not care about the plight of litigants, particularly the poor, or are incompetent. Equally concerning are incidents of corruption within the Judiciary that have been exposed.

What appears to be wanting is a strong enough curiosity about the freedom of Judicial Officers to uphold their affirmation or oath of office, the adequacy of their remuneration and of the resources required for the proper execution of their constitutional mandate. This matter needs serious attention. The stark reality is that far less than is needed is often given to African Judiciaries.

A legitimate way must be found for the leadership collective of the Judiciary to influence decisions about changes needed to secure judicial independence in all African countries, without interfering unduly in the affairs of any sovereign State, given the sensitivities attendant thereto. It would of course be very naive and unrealistic to embark on the process of ensuring that Judiciaries in Africa are independent, efficient and effective, in total disregard for the practical and historical peculiarities, the budgetary constraints, the unarticulated sensitivities and realities that obtain in each African country.

Another avenue to explore is the establishment of a link between regional structures of Presidents and Ministers as well as Parliaments on the one hand and those of the Judiciary on the other. It should not be left to the regional executive structures to take decisions that affect judicial institutions without the meaningful involvement of the leadership of the Judiciary. The Judiciary must also have a voice at AU level about important matters that affect them. Their role should not be limited to the appointment of Judges to regional and continental courts established without any real engagement or consultation. The Judiciary should be involved in the creation and restructuring of all courts.

The dangers of apparent disinterest

Keeping disputes lingering on endlessly in the court system potentially has disastrous consequences for the public, business community and other litigants.

are evident in the SADC Tribunal saga. This is a regional court that was initially empowered to adjudicate disputes between citizens and their Government involving, among other things, human rights, rule of law and democracy issues. After some individuals had litigated successfully against Zimbabwe, the Tribunal was virtually denuded of its powers to handle disputes between citizens and the State even if domestic courts have no jurisdiction in those cases. This is a setback and a retreat of this region and by extension the continent’s commitment to the rule of law, human rights and respect for judicial authority as set out in our regional and continental instruments and protocols.

I am optimistic, for the sake of  SADC, the image of Africa and the renaissance, that the forum of Heads of State and Government will revisit this retrogressive step they have taken and demonstrate the necessary political will to tolerate and accept judicial authority however uncomfortable it may be.

When the Judiciary of each African country operates with the ever-abiding consciousness of its constitutional responsibility to contribute to peace and stability, the observance of the rule of law, crime-prevention and the eradication of corruption, it will help that country to create a climate conducive to sustainable economic development, entrench good governance and realise the legitimate and constitutional aspirations of the citizens.

One of the major game-changers in this project is the Judiciary. The possibility of addressing these challenges will forever be remote for as long as courts at all levels are not left free to occupy their operational space fully and given the resources and support necessary to fulfil the role they were originally created to play.

All of the above can create an investor-friendly climate. When potential investors know that in Africa, they will get justice – against any fraudster, any law-breaker, government or business partners or any entity that tries to take unfair or unlawful advantage of them – it will become an investment destination of choice, given the labour force, the vast tracts of fertile and productive land, the very rich mineral deposits and abundant natural resources Africa has to offer.

An urgent and radical paradigm shift of the prevailing mindset of many African Governments is required in relation to the status, independence and original role of the Judiciary and the resources and capacities they need to discharge their mandate properly. When the collective voices of the concerned are added to the cry for more resources, capacities and independence in the broader justice system and these critical needs are met, we will have contributed immeasurably to the rebirth of Africa as a democratic and caring economic giant that we can all be proud of.

 

This article originally appeared in The Thinker and has been republished with permission.

Chief Justice Moegoeng Moegoeng

Chief Justice Moegoeng Moegoeng has a long serving and distinguished career as a lawyer and judge. He was appointed to the Constitutional Court of the Republic of South Africa in 2009 and subsequently elevated to the position of Chief Justice of the Republic of South Africa in September 2011.

As Chief Justice, he is head of both the Constitutional Court and the Judiciary of the county.

"The Judiciary is the conscience of a nation, the guardian of every constitutional democracy!"