Africa judges seek to spark social change

In hallowed corners of their wood-panelled courtrooms, these men and women are small gods whose sighs, coughs or smiles is powerful enough to permanently alter one’s fate under the sun.

In their antique, “slightly ridiculous” wigs and near-funerary robes, they invoke immortal chill among court users, while also according to solemnity to the process of administering justice.

The manner of their traditions- the distinctive language, the philosophical gaze, the judicial gait, the sophistry of their trade- all add swell to the ocean of fright about them.

But this was very much less the aura when judges and jurists drawn from all over Africa gathered in Nairobi to reflect on their role in the continent’s growth and prospects.

In their various hues, nationalities, ages, genders, languages, classes and schools of thought, they shook off their unmistakable solemnity for easy, smiley, loose and informal selves. It was the inaugural meeting of the Africa Judges & Jurists Forum (AJJF).

Justice Isaac Lenaola, Supreme Court Judge and coordinator of AJJF activities paced up and down the meeting hall, chit-chatting guests, occasionally pulling their legs, and generally making them comfortable.

From Kenya’s Chief Justice Martha Koome whose bench dismissed a presidential petition as “hot air”, her predecessor David Maraga whose bench annulled a presidential election, and their predecessor, the ear-studded Dr. Willy Mutunga whose bench dithered to interfere with the will of the Kenyan voter, the attendance was more than impressive.

And from Justice Moses Chinhengo from Zimbabwe who firmly stood in the way of late President Robert Mugabe’s controversial land reforms, and eventually quit the bench, to Justice (Prof) Lilian Tibatemwa-Ekirikubinza, Uganda’s Supreme Court judge who led colleagues to veto re-appointment of her own Chief Justice.

“Africa ranks at the bottom of almost every measure of human development and is stuck with what appears to be grinding and unending poverty. The question we must now ask is; what is the contribution of the judiciary in helping Africa to transition from this peripheral form of existence?” Mark Okumu-Masiga, Secretary General of AJJF said while welcoming them.

Okumu’s welcome had been long and winding but ended with this thunderbolt of a question. How can judges catalyze the social-economic transformation of their naturally endowed yet troubled continent? How can the function of a judge or a jurist be deployed to enhance social progress and development?

Chief Justice Koome picked the cue, pitching for the building of a justice system which delivers to the ordinary citizen, and the appreciation of the judiciary role in national development and in the realization of Aspiration 3 of the African Union’s Agenda 2063.

The aspiration focuses on Africa “of good governance, democracy, respect for human rights, justice and rule of law.”

“It is clear that African courts are consequential players in shaping the continent’s future. In my view, African Judiciaries must undertake several crucial roles including purposive interpretation of laws, protect human rights and civil liberties, engage in robust judicial review of the legality of state action, and enhancing accountability in governance,” Koome said.

She also called on colleagues to drop the reactive approach to disputes, and adopt a proactive, upstream approach: “Instead of waiting for conflicts to reach our courtrooms, our Judiciaries must engage more with communities to address the root causes of disputes before they escalate into court disputes.” 

As she spoke, the headlines of the day were awash with stories of acting Inspector General of Police Gilbert Masengeli who had, essentially, shown the middle finger to the Judiciary. As the judges gathered to discuss the lofty ideals of justice, out there politicians were tramping on the talk. 

Right across the length and breadth of Africa, and for years, governments- particularly the executive arm of government- have undermined the rule of law by underfunding the judiciary, ignoring court orders, perpetrating human rights abuses and censoring the media among others. 

Judiciaries have also partaken in this venture by condoning skullduggery within their ranks, and by going to bed with the executive and legislature. At this conference, the importance of placing judiciary leadership in the hands of strong, passionate and competent personalities was raised. 

“Sometimes the person appointed the Chief Justice is the biggest threat to the same institution,” Justice Chinhengo, now an acting judge of the Supreme Court of Namibia said. 

Kenya’s own past Chief Justices are a perfect study in contradictions. While some worked flat out to make justice the handmaiden of national development, others out-rightly undermined the rule of law, and some simply left no mark. 

Participants were unanimous that African countries must go all out to ensure that their judiciaries are led by competent and eminent jurists whose focus is on the greater ends of justice. Discussions also centred on the correct procedure of selecting judges and their leadership. 

A Senegalese jurist who worked at the International Criminal Court’s division on cooperation and complementarity told the forum that personal attributes, conviction and drive of judges matter more than institutional strength.  “At the end what matters is the person. What judge do you have, where do they come from, what is their background? We should focus much more on the person, at the selection level,” he said. 

Dr Mathilda Twomey-Woods, a former Chief Justice of the Supreme Court of Seychelles said Judges should strengthen and encourage peer review, including calling out on colleagues who make mistakes. 

She said it must be appreciated that judges are ordinary human beings who make mistakes, and who deserve to be corrected. Other discussions focused on the process of constituting judicial service commissions, with a comparative analysis of the various models. 

Judges encouraged each other to be independent, narrating their personal stories to learn from one another: “The executive respects you when you are independent. If you think bootlicking is what will help you earn their respect, then you are wrong,” Prof Tibatemwa said.