Judiciary: Fighting graft needs muscles

August - November 2019

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Judiciary: Fighting graft needs muscles

Impartial judges help strengthen the rule of law
Franck Kuwonu
From Africa Renewal: 
New judges for the Court of Appeal being sworn in in Ghana. Photo: FH Communications Bureau
New judges for the Court of Appeal being sworn in in Ghana. Photo: FH Communications Bureau

When a survey on corruption was carried out in Ghana two years ago, more than 8 out of every 10 Ghanaians (85%) said judges and magistrates were some of the most corrupt public officials in the country. 

On top of the list was the police (89%), while national government officials (86%) came second. The judiciary tied for third place with the Ghana Revenue Authority. The survey was conducted by Afrobarometer, an independent, nonpartisan network that conducts public opinion surveys in Africa.

Some African countries have made significant progress in ensuring judicial independence.

A local journalist, Anas Aremeyaw Anas, showed that the judiciary’s high ranking was justified. He conducted an explosive undercover investigation into corruption within the judiciary, which exposed judges accepting bribes to either throw out cases or pass lower sentences.

Mr. Anas’s findings were aired on national TV in a two-hour investigative report featuring hidden camera footage, the result of two years of investigation. These recordings riveted the nation, and Ghanaians were outraged as they looked at grainy images of judges and other judicial officers accepting money or food, including a goat in one instance, in exchange for favours from the bench. 

Long-held suspicion

“Justice has been wounded,” Ghana’s chief justice Georgina Theodora Wood commented a few days after the release of the incriminating footage. She said the exposé had “cast a dark shadow on the legal community as a whole, its services, its people and its credibility” and deepened long-held suspicions about the legal profession in general. 

The role of the judiciary is to enforce the law and hold public officials accountable. Scandals like the one in Ghana highlight the structural weaknesses in the judiciary in many sub-Saharan African countries. 

According to anti-corruption activists, the lack of judicial independence from the executive is one of the root causes of a judiciary’s inability to uphold the law. The findings of the 2016 Africa Integrity Indicators report produced by Global Integrity, an organization that promotes transparency and accountability around the world, showed that judicial independence is not guaranteed in about half of the 54 African countries. 

Global Integrity data is also used to compile the annual Ibrahim Index of African Governance, a project of the Mo Ibrahim Foundation that collects data for every African country and ranks them according to how well they adhere to principles of good governance. 

“We looked at whether there are influences [over the judiciary] from other branches of the government,” Sun-Min Kim, a manager at Global Integrity, told Africa Renewal. “But since judicial independence is such a broad concept, our indicators have tried to specifically assess the appointment process, for example, and the degree of autonomy of judges in giving rulings, whether or not the rulings were justified and if they were made public.”

In some cases judges, magistrates and prosecutors may be beholden to political interests when their careers are controlled by the executive branch. In Cameroon, for instance, the president chairs the highest judicial body, the Superior Council of Magistracy, which, among other things, oversees judicial appointments. In some parts of Africa, the president might have the final say in who gets selected for higher courts. 

Appointments sanctioned by the president of a country tend to be determined by political loyalty rather than merit. When such appointees fill the judiciary, experts argue the likelihood of a government being held accountable is diminished and the door is left open to all kinds of influence, including political pressure, threats and bribery.

Even when the independence of the judiciary may be formally and legally guaranteed, the risk of interference is still present. In Angola, for example, Judge Joaquim de Abreu Cangato, a long-time official of the ruling party apparently with no judicial background, was appointed in March 2000 to the country’s supreme court, according to the Committee to Protect Journalists 2016 report. This was despite the fact that judicial independence is enshrined in the country’s law.  

Of the 54 African countries surveyed by Global Integrity, 11% have a “completely independent” judiciary, while 30% are “not completely independent”. Among those found completely independent were Botswana, Cape Verde, Mauritius and South Africa.

Checks and balances

Some African countries have made significant progress in ensuring judicial independence. Botswana’s judiciary, for example, “is generally considered independent despite concerns over the president’s unfettered power to appoint high-level judges,” says Marie Terracol, the programme coordinator on whistleblowing at Transparency International, an anti-corruption watchdog. However, Amnesty International has raised concern over President Ian Khama’s suspension this year of four high court judges. 

South Africa has a mixed record when it comes to judicial independence. The recent ruling by the Constitutional Court, the country’s highest judicial body, upholding corruption allegations against President Jacob Zuma, was internationally hailed as a sign of the judiciary’s independence, wrote The Guardian, a British newspaper. 

“The President has failed to uphold, defend and respect the constitution as the supreme law of the land,” a unanimous court found earlier this year, after President Zuma and his government failed to comply with the recommendations of the public protector, Thuli Madonsela, to repay public money spent upgrading the president’s private home. 

Slow progress

In 2011, Mogoeng Mogoeng, South Africa’s chief justice, was appointed by President Zuma over then deputy chief justice Dikgang Ernest Moseneke, who was widely viewed as having been more experienced and better qualified. Civil society organisations and opposition parties opposed the appointment, claiming that the executive was trying to stifle the independence of the court and possibly skew its decisions in its favour. But as the South African Constitutional Court decision showed, judiciary appointments, even by politicians, do not always tie judges’ hands. 

For its part, Cape Verde, generally considered one of Africa’s strongest democracies, appoints its judges and magistrates through a selection process based on merit. 

In 2007, when many African countries were planning judicial reforms, Transparency International looked at corruption in judicial systems in its annual global corruption report, focussing on political interference and bribery involving court personnel. It recommended greater transparency, fair court processes, training of court officials and greater involvement of the civil society. 

The report also emphasised the importance of striking a balance between accountability and independence, adding that “granting judges independence, while subjecting them to effective accountability mechanisms, will deter prosecutorial and police corruption.” 

These recommendations form the basis of judicial reform programmes across the continent. Based on the current Africa Integrity Indicators, the continent is making progress, albeit slowly, on judicial accountability.   

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