By Joseph Elunya email@example.com
Global integrity has released findings of a research that it conducted in several African countries on public accountability, rule of law independence of the judiciary among others.
The findings released today shows shows that interference from the executive branch significantly limits the strengthening of an independent judiciary, auditors and civil service across Africa. Even in countries where the judiciary enjoys full legal independence, in practice about half of the countries received very low scores and only six received high marks.
However, some countries show progress both in the legal framework and in practice. For example, a 2014 law in Tunisia added explicit provisions on judicial independence and constitutional protections from external intimidation were introduced in Liberia. In practice, in Benin, judges have been vocal whenever their independence was somehow threatened.
The situation is very similar with the auditing institutions and in the civil service. The research found significant instances of executive interference into audit operations, including restrictions from auditing certain accounts, politicized appointments and removals without due process. In the case of the civil service, only six countries scored well and reports of the removal and replacement of civil servants based on political affiliation were common.
Transparency & Accountability
o Significant executive influence on the judiciary is common whether there is de jureindependence or not. For instance, in The Gambia (2015), the research notes that two chief justices were removed in July 2013 and February 2014 without due process, thus warranting a low score. Similarly, while de jure judicial independence exists in Angola, in practice this is highly compromised due to executive and political influence. There, the researcher reported, “As an example of the MPLA influence over judicial appointment, Manuel Aragão was selected by the High Council of the Judicial Power as a Supreme Court justice. He has a long political career within the MPLA structure, is a former justice minister and a member of the National Assembly, but has no previous legal qualification or experience and has never been a magistrate or had a career in the judiciary.”
o Several venues support direct executive influence on the judiciary. In many instances, the executive has a position on the supreme council of the judiciary, which is directly involved in judicial promotion and disciplinary decisions. For instance, the comment in Cameroon (2014) notes, “According to Article 1 of Law No. 82/14 / of 26 November 1982 establishing the organization and functioning of the Superior Council of Magistracy, the Supreme Judicial Council is chaired by the President of the Republic. This executive influence undermines the independence of the judiciary.” Thus, just under half of the countries surveyed earned a score of NO on the indicator about whether in law the independence of the judiciary is guaranteed.
o In many countries, the judiciary earns low scores on both the laws and the practice. For instance, in Equatorial Guinea there is no legal independence and the executive wields considerable influence. The researcher reported that the President appoints judges of the Supreme Court without any parliamentary oversight, and also controls the judicial council. Furthermore, “Disciplinary measures continued to be arbitrary and mainly due to political motivations. The judge that was detained in Bata in 2013 due to a judicial decision that affected the president’s son was released in December 2013 after being in prison for three months without charges.”
o Does the judiciary have a role in reviewing laws? Even in countries where the law guarantees that the judiciary operates independently, the judiciary does not necessarily have full jurisdiction to review laws in six of them. For instance, the researcher in Zambia reports, “There is no provision that explicitly enables the judiciary to review the constitutionality of legislation or review laws. In fact, Section 34 of the National Assembly (Powers and Privileges) Act expressly denies the judiciary the right to review actions of the legislature.”
o The legal framework improved from 2013-2014 in many countries. For example, Tunisia improved its in law score due to legal changes during the 2015 study period (Sept 2013-Sept 2014). In 2014’s research, Tunisia scored a NO on indicator #1, as the new post-revolution law provided only general independence for the judiciary, and yet did not establish the judiciary’s mandate to review laws. Tunisia then earned a YES in 2015, as the January 2014 passage of the new Tunisian Constitution provided such a mandate, along with more explicit provisions on judicial independence. Liberia also improved due to the introduction of constitutional protections from external intimidation.
-In practice, judicial independence exists in different degrees in about half of the countries. For instance, in Botswana, “There has been no evidence that shows that pressure is exerted on judges from the government. Judges have autonomy to interpret and review existing laws, legislation and policy.
-During the period of study, there were no incidents such as politics, nepotism or influence that transpired and trampled upon the power of the judiciary to perform as an independent entity.” There are also clear examples across the continent of merit-based appointment procedures being insulated from undue executive influence. For instance, in Cape Verde, “National-level judges are chosen through a merit-based selection system. Vacancies for Supreme Court judges are competitive and open by resolution of the Supreme Council of the Judiciary. The filling of vacancies of judges of the Supreme Court is by promotion through curricular public tender, open to associate judges.”
Africa Integrity Indicators are an excellent source of data for the Ibrahim Index of African Governance. They are also used by the World Bank’s Worldwide Governance Indicators (WGI) and by the Millennium Challenge Corporation.
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