D. Tinashé Hofisi
How can African states ensure that constitutional enforcement is an effective check on the elected branches of government? The historical struggle for judicial independence in African states is a testament to the challenges of implementing liberal constitutionalism in post-colonial settings. In the post-independence era, African courts faced political backlash for asserting their independence against the newly elected black governments. For instance, within four years of independence, the Malawian and Zambian chief justices had resigned in politically charged circumstances. President Kwame Nkrumah removed the chief justice from office six years after independence in Ghana. In Zimbabwe, the regime of President Robert Mugabe forced the chief justice into early retirement shortly after decisions relating to election petitions and land reform.
It is crucial to understand the political dynamics that allowed African leaders to reshape the judiciary with little public resistance. My doctoral dissertation highlights the unexplored yet salient weakness that undermined judicial legitimacy. The race of the foreign, predominantly British judges presiding over the Malawian and Zambian courts, and that of the settler judges remaining in Zimbabwe, accentuated perceptions of colonial continuities, thereby depriving them of contingent public support. This allowed African leaders to couch political backlash as popular nationalist responses to a white, elite, and recalcitrant judiciary. Consequently, even though judicial recomposition expanded executive power, it secured public support, or acquiescence, by increasing the descriptive representativeness of these courts. My thesis also shows that this absence of contingent legitimacy enabled a successful backlash against a sub-regional body, the Southern African Development Community (SADC) Tribunal.
I trace the constitutional histories of the former federated states of Malawi, Zambia, and Zimbabwe, noting how the expansion of constitutional jurisdiction positively correlated with increased judicial legitimacy. The three countries only expanded constitutional jurisdiction after indigenizing the bench. The result is institutional variation among countries that once shared the same federal supreme court. Malawi’s Constitutional Court is empaneled at the High Court level, subject to the appeals at the Supreme Court. The Zimbabwean Constitutional Court is an apex body with original jurisdiction in specified instances. The rest of the Constitution is enforced at the High Court level, subject to the apex court. The Zambian Constitutional Court is also an apex body. It has original jurisdiction over the entire Constitution, except for the enforcement of rights, which is at the High Court level subject to another apex body, the Supreme Court. Constitutional enforcement is the most decentralized in Malawi and the most centralized in Zambia, save in rights enforcement, with the Zimbabwean model in the middle.
This institutional variation has produced a striking similarity; the High Court remains the preferred site for constitutional enforcement. Thus, litigants in countries with apex constitutional courts like Zambia and Zimbabwe are framing their cases to avoid apex courts and access the High Court's jurisdiction. This is where enforcement has also been effective in Malawi. This contradicts the logic of establishing stand-alone courts as guardians of the Constitution. There is evidence that political authorities in Malawi and Zambia have a history of tolerating lower court activism due to the possibility of appellate reversal. I conclude that the certainty of constitutional jurisdiction in specialized courts disincentivizes constitutional enforcement as a justification for the court’s existence. Instead, the subordinate courts of general jurisdiction are motivated to uphold the fundamental law and prove their capacity for constitutional adjudication. Further, subordinate courts actively signal their receptiveness to constitutional arguments to invite constitutional cases that enable them to exercise this power.
I also identify constitutional awe as a direct consequence of court specialization. This is a distinct approach to adjudication that treats the Constitution as fundamentally different from any other law. Lower courts do not share this awe, partly because their caseload has higher volume and variety. Consequently, they are more comfortable applying the Constitution as ordinary law, unlike apex courts which regularly engage in the canon of constitutional avoidance to limit the cases implicating the fundamental law. The appointment dynamics also mean new appointments occur at the High Court level, where younger judges desiring career advancement seek to build a reservoir of judgments related to the Constitution. On the other hand, apex courts are constrained by factors such as high visibility, the need to generate consensus on panels, and the burden of ruling with finality. Therefore, in these cases, status within the hierarchy of courts is inversely proportional to the level of constitutional enforcement.
These findings have significant implications for judicial reform efforts, particularly for matters dealing with mega-politics. They underscore the importance and urgency of re-evaluating centralized constitutional jurisdiction in apex courts. I suggest that the traditional structure of courts should apply to constitutional jurisdiction. Ergos, subordinate courts must have the power of constitutional adjudication, subject to appeal at the apex or intermediate appellate court. This not only reflects the institutional capacities of these bodies, but would also enhance procedural and substantive justice.
Cite as: D. Tinashé Hofisi, (2024) Judicial Review in Southern Africa: The rise of Constitutional CourtsAvailable at: https://ancl-radc.org.za/blog/judicial-review-in-southern-africa-the-rise-of-constitutional-courts (Accessed: [date] [month] [year])