Charles Manga Fombad. “The Struggle to Defend the Independence of the Judiciary in Africa”. In Challenged Justice: In Pursuit of Judicial Independence. Edited by Shimon Shetreet, Hiram Chodosh, and Helland Eric, pp. 223-248. Leiden, The Netherlands: Brill | Nijhoff, 2021
Summary: By design or default, Africa’s post-independence constitutions perpetuated a system of harsh authoritarian governance in which the executive dominated the legislature and the judiciary. During the long years of authoritarianism, judges were progressively stripped of their independence—to the degree that they were appointed and dismissed on the whim of presidents. As a result, the judiciary was reduced to the docile accomplice of repressive regimes and unable to function as an impartial enforcer of the law and defender of constitutionalism. Since the 1990s, however, a major preoccupation among constitutional reformers on the continent has been to design judicial systems that help restore confidence in the judiciary. Nonetheless, judicial independence remains at serious risk. Major strides have been taken to make the continent’s judiciaries more independent, effective, and efficient, but these efforts have run into numerous obstacles. When complex, politically sensitive cases come before the courts, for instance, especially ones involving disputed election results, judges face enormous pressure to decide in favour of incumbents. The inclination of executives to exploit their role in regulating the judiciary—one played as part of the normal checks and balances associated with the doctrine of separation of powers—raises a great many questions about the prospects for judicial independence in Africa.