ECAS 2013

Analysts of judicial politics in new democracies have typically concluded that rapid 'judicialisation' poses a threat to the embedding of courts in political systems. Before cementing their legitimacy in the eyes of the executive, that is, courts should be wary of encroaching upon its key prerogatives. This work, however, has been largely concerned with the study of courts' engagement with issues such as the legality of constitutional amendment, detention of opposition figures as security risks, eligibility of electoral candidates and presidential immunity. It has largely neglected the equally treacherous involvement of courts in fundamental disputes over political order. This paper presents case-study research on key judicialised conflicts over property rights regimes and associated forms of political authority in southern Africa. It focuses on cases involving seized commercial farms in Zimbabwe, indigenous rights claims in Botswana, and the direction of land reform in Namibia. It argues that these cases cannot explained by the 'thin' and 'thick' models of elite strategy common in the literature, but should instead be understood in ideational terms. They are in large part products of the regional spread of beliefs in rights since the 1970s, and the related collapse in older statist ideals. In political cases of this nature we cannot understand courts' dilemmas in purely strategic terms, because imperatives of institutional preservation clash with ideas and identities constitutive of judicial actors. This analysis is borne out by the often tragic consequences of the cases under examination for the courts concerned.

In the mid-2000s, reform efforts in the Ghanaian court system were stepped up. The rule of law and the courts' and judges' role as guardians of democracy, freedom and human rights as well as their role in establishing a sound economic system were highlighted in negotiations between the different branches of government. It came as a surprise to the Ghanaian executive how the habitually cautious and reserved judges put forward forceful arguments, aptly coined in 'policy language', to gain financial support for judicial reforms and to improve their institu-tional independence. The Ghanaian judiciary led negotiations in its own right. Why at that time, who did it and how? Intergovernmental negotiations on a broader level were seen as a new task for the judicial service and demanded more than the legal skills usually expected from judges. This paper aims at showing how some actors in the judiciary have become major players in the formal and informal system of checks and balances between the branches of government in Ghana. It traces the collaborative efforts of some judges of the Supreme Court and of the Judicial Service administration, who used accounts on the daily challenges of Gha-naian courts on all levels not only to justify shortcomings but to argue for reforms and in-vestments to increase public accountability and institutional independence. This paper analyses the political setting of these negotiations and the main actors' arguments and strategies to strengthen the courts' effectiveness and legitimacy in an era of democratic government.

It is now more than twenty years since the transition to multipartyism and the expansion of judicial review in sub-Saharan Africa. Much of the literature on African politics focuses on executive hegemony and downplays the role of the other two branches of government. Although the legislature and judiciary tend to be dominated by the executive, it is also important to study them directly in relation to one another. While formal constitutional change has signaled an end to the era parliamentary sovereignty, the willingness of legislatures to respect this has been sporadic at best. A de facto political culture that mistakenly privileges parliamentary sovereignty lingers far beyond its sell-by-date. This paper assesses the relationship between the judiciary and legislature in Malawi, Tanzania and Uganda since 1994. Through analysis of important judicial review cases and original fieldwork, this paper asks: Can the courts execute their role as guardian of the separation of powers and constitutional arbiter in an environment characterized by parliamentary disrespect and a political culture of misinformation? Additionally, this paper will analyze the ways in which the constitutional and supreme courts have sought to simultaneously educate and chastise members of parliament and the general public in regards to respect for separation of powers and constitutional supremacy. Finally, looking forward, this paper will evaluate the possibility of moving away from an adversarial relationship to the emergence of a constructive dialogue between the legislature and the judiciary.

The paper compares two alternative theories explaining the creation of constitutional courts (CC): diffusion and insurance as strategic action. Francophone West Africa is a methodologically appropriate area to study the comparative strengths and lacunae of these theories. On the one hand, the region is relatively homogeneous with regard to its political history. Its strong relationship to France implies diffusion to originate from the French model ("mimétisme constitutionnel;" Gaudusson, Fombad, Reyntjens, etc). However, if West African courts were merely Gallic blueprints, strictly speaking, alternative models should not have been considered. On the other hand, at least Benin's CC has attracted attention for its outstanding powers that obviously exceed French standards. Thus, the variance might be better explained with the insurance theory (Ramseyer, Hirschl, Ginsburg).

Our outline: First, to what extent do the formal institutional bases of these courts vary from the French model? We therefore collected systematical data on the formal institutions that govern the CCs in 9 West African countries (former AOF including Togo). Second, we analyze the courts' creation to assess the diffusion theory. Third, we reassess the shape of political competition in the decision-making process. Can we find evidence supporting the insurance theory based on political competition data? We use document analysis and original data from various field trips in the region. Finally, we will evaluate if and why some post-colonial states have been more strategic and draw preliminary ideas on the consequences of the respective differences.

A core aspect of judiciaries' accountability function is to prevent democratic malfunctioning - which, according to Ely (1080) happens most dramatically when "the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out". In such situations, the courts must act to keep open the channels of political change, participation and communication. In this perspective courts' role in election processes is crucial, but what enables courts to deliver on this mandate? This is an important question in a context where regimes that would on other parameters be regarded as authoritarian increasingly seek legitimacy through multi-party elections. Not least in Africa, multi-party elections seem to be a central strategy for non-democratic leaders to stay in power. In many hybrid regimes or electoral autocracies, courts are central before, during and after elections, including as an arena for the opposition to contest the fairness of the election process and -outcome. What functions do courts play in such contexts? Do they help clear the channels of change and participation and thus strengthen democratic institutions and forces? Or do they serve as means for appeasing the opposition and legitimizing authoritarian regimes, thus effectively aiding the ins in their effort to stay in power? The article proposes a framework for investigating short and longer-term effects of court-involvement in electoral processes. This is used to analyse material from authoritarian or hybrid African regimes where courts have played a role in election processes (Angola; Uganda; Zimbabwe and Zambia).

In their strategy to make of the Congo a 'state of law', foreign donors have attached crucial importance to the reform of the judicial system. In accordance with their recommendations, the J. Kabila government, elected in 2006, adopted a new constitution, new legal codes and a plan to restructure the judiciary. One of the major ambitions of this plan was to improve the access to 'modern' justice, by replacing 'customary' courts with justice of the peace courts and fighting against corruption in local state courts.

Based on collective research carried out between February and December 2010, this paper aims at appraising the problems facing this type of reform at the local level, by comparing the functioning of 'customary' courts with the one of Justice of the peace courts in the area of Lubumbashi. After a brief presentation of the Congolese system, the paper will deal with the litigants' experiences in 'customary' courts and the everyday work of 'customary' judges. Each of these two points will be compared with our observations in Justice of the peace courts.

As the conclusion of the paper will show, this comparative approach between 'customary' and 'modern' courts allows for an empirically-grounded critique of the 'legalist' and 'modernist' assumptions underlying the reform of Congolese judicial institutions. It also offers new insights into the state vs. informal justice debate that has recently re-emerged in several African countries.

The Burundian study case presents some particularities among transitional justice processes. Whereas the Arusha peace and reconciliation agreement for Burundi in 2000 decided setting up two transitional justice instruments, a special chamber and a TRC, the transitional justice process hasn't begun yet . A sort of consociativisme system was set up in Burundi as the model organization of power-sharing. Inside the politic game of power-sharing the peace-justice dilemma appears through manipulation of retributive justice, which is assimilated to "Justice", and the truth and pardon, which claim referring to "Peace". Classical retributive justice seems shown its limits regarding the objective of peace. Another particularity is found regarding numerous judicial and legal reforms relatively to children rights, lands conflict, electoral law or Criminal Code. On one hand, transitional justice seems to be past justice, currently justice and future justice at the same time and on the other hand it may take several forms out of the official one, initially predicted. In a legalist and normative view, global nature of justice in transition might cause deadlock regarding the case of Burundi. In a systemic and multidisciplinary perspective, global nature of justice in transition reveals change capacities according to the case of Burundi. Nevertheless, restorative experiences, especially regarding Gacaca in Rwanda or TRC in South Africa, are not representatives of real modalities of restorative justice. Finally, any choice seems to be done between peace and justice but a particular form of justice is privileged in a specific moment of a long-term process of transitional justice.

From early 2000's numerous legal actions have been sued before South African courts by a coalition of human rights organizations representing Apartheid victims. While these procedures represent another dimension of the judicial treatment of apartheid crimes, they are completely ignored in comparison to the Truth and Reconciliation Commission's (henceforth TRC) work. This paper seeks to present how ordinary courts face the legacy of Apartheid crimes in the shade of the TRC.Comparing different cases either adjudicated or dismissed, allows me determining how courts face the « unfinished business » of the TRC. They also have to confront with questions which were not addressed before. Secondly, I analyze how courts' decisions can improve the understanding of TRC mechanisms with regard to the amnesty process. In this respect, the Robert McBride vs Citizens decision by the Constitutional Court is a case in point. On the other hand, the controversial position of the South African government regarding apartheid issues led human rights and victims organizations to use courts as a political forum to oppose some decisions. Doing so, they shape the scope of actions examined by the judicial power. Indeed human rights and victims' organizations have to determine relevant strategies : bringing the unresolved matters to the judicial arena or relying on the classical repertoire of political mobilization. All in all, this presentation explains how South African Courts have regained their centrality in matters concerning apartheid and sheds light on their possibilities of actions and constraints.