by ANB-BIA, Brussels, December 1997
Every well-organised society has to have rules and regulations, law and order, otherwise there is complete chaos. How these are interpreted in the everyday business of living, will depend on the society in which we live. But who ultimately ensures there is order in society and that our fundamental liberties are safeguarded? It is the Judiciary - that body of men and women, be they judges or magistrates (or others associated with them), who guarantee our basic rights.
With this in mind, AFRICAN NEWS BULLETIN asked a selected number of journalists (as far as possible those actually living and working in Africa), to analyze the current situation of the judiciary in their countries. The following reports represent their findings.
It should not be forgotten that Africa had a legal system of its own in place for centuries, long before the arrival of European explorers, and the eventual establishment of the colonial authority, which imposed foreign laws on an unwritten legal system. There were customs and traditions in every tribe, governing people's daily lives and how they related to each other. The rule of law was an intrinsic part of the old Africa.
But times and situations have changed. As Sierra Leonean Justice Abdul Koroma of the International Court of Justice puts it: "Of course, there were rules in Africa in the past, but if Africa is to become a modern continent, we have to abide by what entails today. That does not mean we are denying our Africanness".
With this in mind, it is important to note that some countries, in addition to the judicial systems inherited from colonial days, also have other kinds of courts, adapted to their particular needs. Mention is made of Ghana's Tribunal System, South Africa's Chiefs' Courts, Botswana's "Kgotla" - traditional gatherings, Mauritania's Islamic Courts.
Independence
In today's Africa, there are problems relating to the judiciary, and one major problem concerns the independence of the judiciary from the governing authority. In some countries, either explicit reference is made in the Constitution to the judiciary's independence, or there is a definite policy of not interfering with the judiciary in the exercise of its function. How this is carried out in practice varies from country to country, especially when it concerns the appointment of judges and magistrates to the Bench. Frequently, the ideal of a completely independent judiciary remains just an ideal, but one thing is incontrovertible - an independent and impartial judiciary is the cornerstone of the rule of law in any democratic society.
A judiciary's independence, will largely depend on how judges are appointed and on whom they depend. Many countries have some kind of Appointments Committee under a variety of names: Judicial Service Commission, Higher Judicial Council, Council of Magistrates etc., who recommend to the Head of State, the names of judges for appointment to the Bench. The problem, is, that frequently, members of this Appointments Committee are themselves presidential appointees!
Some Constitutions provide for the independence of the judiciary, but do not spell out how this is to be carried out. Typically, members of the judiciary are dependent on the Minister of Justice - an administrative organ of the executive power. In short, it would seem that generally speaking, the judiciary in most African countries is part and parcel of the civil service, which in itself, is not independent.
But not all is doom and gloom. Mention is made of outstanding jurists who are determined to uphold the rule of law and who show great courage especially in the face of executive encroachment; also, an entire judiciary making an effort to reform itself.
A word about the translation of judicial technical terms. By and large, Africa has inherited two legal systems: in Francophone countries - the French Civil Code; in Anglophone countries - English Common Law. It has not always been possible to make a literal translation of technical terms, as these do not always correspond. (For example: a Francophone "Magistrat" does not necessarily perform the same duties as an Anglophone "Magistrate"). We have tried to give a translation which will make the reader feel "at home" in the language he/she has chosen to receive ANB-BIA.
END