Public Lecture by Francis Ben Kaifala, The Commissioner of the Anti-Corruption Commission of the Republic of Sierra Leone at Fourah Bay College, University of Sierra Leone on Friday 30th October, 2020.
What exactly constitutes Judicial independence has often generated scholarly debate among political Scientists and lawyers. Many have argued that the concept does not exist in the sense that lawyers believe it – i.e. an independent court that applies laws fairly and justly between litigants before it - at every given time without - external control. Others have argued that judicial independence can in fact exist and that judges or courts in some countries or prevailing conditions do demonstrate what could be regarded as independent decision-making in particular cases. The various literature on the issue examine the concept in both autocratic regimes and democracies. Some prefer to take a more cautious approach by not preferring to use the word “independence” but rather use other substitutes that may connote the same meaning, like “autonomy”.
With that definition in mind, the first focus is to determine to what degree can courts be said to be independent in political systems. Many of the works in this regard focus on bringing out the factors that undermine courts’ ability to reasonably, but independently, perform judicial functions. Today, I will examine with you those factors in the context of autocratic regimes in Turkey, Egypt, Uganda, Zimbabwe, and Mexico; and also apply my main argument to prototype democracies – that whether in a democracy or autocracy, no judiciary is fully independent anywhere; though courts in more democratic countries tend to enjoy greater degree of judicial independence due to the existence of a pluralistic political structures from which the courts draw their power. I will use this theory developed from examining judicial independence in the aforementioned countries to apply same to Sierra Leone – a country that is deemed to be largely pluralistic and democratic - so as to determine the factors underlying our Supreme Court’s independence, or lack thereof, on political matters involving the state or in which the regime may have an interest notwithstanding that the Constitution expressly guarantees its independence and the society is fairly pluralistic and largely democratic.
JUDICIAL INDEPENDENCE IN NON-DEMOCRATIC STATES
It was once believed by most political scientists that judicialization of politics was only possible within democratic settings. When certain non-democratic states like Egypt started showing greater judicialization, this appeared to be a perplexing paradox – autocracy and independent courts. This then stimulated an inquiry into the factors behind the possibility of the existence of an autocratic regime and a Judiciary that is somewhat independent within the same country.
Among those who explored this paradox was Tamir Moustafa, who, in “Law Versus the State: The Judicialization of Politics in Egypt”, conducted a careful study of the courts in Egypt between 1952 and 2008 bringing out the previously unexplained paradox as to how Egypt’s autocratic regimes, after 1979, conscientiously spearheaded the establishment of an independent Supreme Constitutional Court (SCC) that was mostly insulated from executive control, and largely capable of guaranteeing freedoms and rights (starting with property rights), delivering credible decisions on controversial issues - even against the government, siding with and supporting the work of civil society on political rights, etc. He began with setting out the historical development of Egypt’s Supreme Constitutional Court’s empowerment, starting with the reforms of Anwar Sadat after the death of the Socialist, Gamal Abd Al-Nasser, in 1979. He concluded that the courts were empowered by the regime so as to bolster investor confidence by particularly guaranteeing, beyond mere legislative reforms and laws, that there would be no state unilateral seizure of private properties without due process through independent judicial actions. He concluded that the motivating factor for judicialization was to further the regime’s credible commitment to restore investor confidence and lure foreign investors to invest in Egypt following the massive controversial nationalization policy that characterised Nasser’s regime between 1952 to 1979.
From that initial empowerment, the courts then created tacit partnerships with civil society, the legal community, human rights groups, etc. as additional sources of their power over time. To ensure stability, the judiciary faithfully supported the government’s core political and economic agenda to mainly provide credible commitment to investors. That agency support to the regime is believed to have been the main source of the courts’ power which made it more independent than would be expected in an autocratic state. Surprisingly, the regime did not do much to interfere or reverse this rather paradoxical socio-political order even with decisions that went against it until late 1997 and after.
Other examples of the paradox of judicial independence existing in autocracies was presented by Widner and Scher who studied the courts in Ugandan and Zimbabwe and claimed that judicial independence can reasonably exist in non-democratic systems in particular instances. To support this claim, they presented a comparative description of instances of the demonstration of judicial independence by courts/judges in Zimbabwe and Uganda, including instances where they dangerously challenged the regime. Unlike Egypt where, from the onset, the regime sought to delegate long term judicial power to the courts, it would appear that the delegation of judicial power to the courts in Uganda and Zimbabwe were merely temporary. This short-term delegation was then used by the courts to attempt to strengthen and expand their power, form alliances, and, though unsuccessfully, seek to move towards greater independence and insulation from political control. However, following this display of independence by making decisions which were considered unfavourable to the respective regimes’ core interests, both countries’ judiciaries came under considerable attack from the respective regimes. While Uganda’s judiciary survived the experience, Zimbabwe’s justice system could not survive same; as the regime packed the courts with more favourable judges, forced some judges to retire or flee and then replaced them; which thereby restored its control once again.
In a similar vein, Beatriz Magolani examined Mexico’s courts under Autocratic regimes pre-1990 on to the transition period in the 1990’s and onwards. To her, the courts under Mexican autocratic regimes were nothing more than the regime’s instruments of social control primarily serving the interest of the President and the PRI Party. This only changed when the Mexican political system became more pluralistic not only in terms of the emergence and sustenance of multi-party opposition parties, but also the development of fragmentations within the ruling PRI Party. With the growing pluralism leading up to elections in 2000, the courts had to find a new or additional source of power which the PRI regime’s President alone could no longer provide. That was the beginning of their re-alignment towards greater independence beyond what used to exist during PRI Party dominance in the period pre-1990.
Another scholastic work on judicial independence in non-democratic political systems was by Ceren Belge who examined the Turkish courts under several years of Kemalist autocratic rule. The courts had their power from the elitist Kemalist regime and served as instruments of social control and did all they could to ensure that counter-majoritarian hegemonic control was maintained to preserve the regime’s secular objectives above other considerations like human rights. Like Mexico, the courts mostly did what the regime wanted other than seek to primarily serve the interest of fairness and justice.
The above works by the different scholars, though very insightful, may have exaggerated the degree of judicial independence that existed in the countries described above. For instance, the independence of the Egyptian courts was questionable because they were essentially latent agents of the regime directly fostering its economic and socio-political agendas. At best, the benefit that the Egyptian society received from the courts, including the enforcement of rights against the regime, could be considered as being merely reasonably incidental to creating a semblance of independence so as to attract investors (which was the primary objective of the regime). The courts were, by and large, allies of the regime; and that is what emboldened them to continue to expand their power unchallenged in most spheres of judicialization. The regime did not feel threatened in those spheres that mattered to them most, i.e., their credible commitments to attract investors and maintain the security of their power. In this regard, Egypt’s SCC were not much different than their Turkish or Mexican counterparts who similarly faithfully protected the core commitments of their regimes – to loyally maintain the regimes’ control over all sections of their respective societies. Those decision that seemingly demonstrated their independence may have been part of the subterfuges the courts use to maintain their legitimacy. By that, they use cases that do not touch the core interests of the regime and make decisions that resonate with citizens’ aspirations for triadic dispute resolution-type independence. It however serves the regime’s and the court’s interest more by increasing or maintaining the court’s power.
Similarly, for Uganda and Zimbabwe, the courts lost favour with the respective regimes mainly because they sought to withdraw from the bargain tacitly struck that initially empowered them. In those countries, the courts, by their actions in adjudicating against the regime’s interest, were no longer seen as allies of the regime. The Zimbabwean or Ugandan regimes may not have had the same motivations as the Egyptian regime. However, they too had their core socio-economic commitments which they expected the courts to help them enforce, realize and maintain – just like their counterparts in Turkey and Egypt. While Scher and Widner did not provide sufficient information similar to what Moustafa provided as antecedents to Egypt’s regime empowering the courts, it is well known that Zimbabwe’s regime won elections on the promise of land repossession and redistribution from mostly minority white owners to majority poor Africans as a means of correcting “colonial injustice”. A court that declares acts of land seizure by the regime “unconstitutional” would clearly not be serving as an ally as would be expected. To put this into context, this is what Robert Mugabe once said after a court ruling guaranteeing property rights of White farmers:
“The court is saying nonsense. It will never happen that Blacks should fight each other. I will die with my claim to land. My right to land is a claim which cannot be compromised. It is our right; it is our land. We must be prepared to die for it.”
Similarly, Uganda’s President is a benign despot who has been in power since 1985 to date; and like Robert Mugabe, he wishes to remain in power till he dies. Courts or judges that deliver rulings that empower the opposition, in this case Besigye, cannot be his allies. These two respective core interests of the regimes in Zimbabwe and Uganda may be merely secondary to the regimes in Egypt and Turkey. The courts in Egypt and Turkey did themselves good by refraining from making decisions that negatively affect the regime’s interests on state security – based on “insulated liberalism” for Egypt; and keeping to counter-majoritarian rulings for Turkey. By doing so, they remained allies of the regime.
All the above explanation of the various regimes’ power over the courts are in line with the positivist Latin maxim, “Quod principi placuit, legis habet vigorem” - translated to mean, “that which pleases the ruler has the force of law”. There may hardly be doubts that this is what obtains for all the courts in the countries under review with varying degrees of conformity with “the wishes of the ruler”. With that said, considering the definition I had adopted earlier stated, could it to say that that those courts had judicial independence in the real sense of that phrase? If yes, what then is “judicial independence”? Can a judiciary that rules against a regime on some issues, but not on others, be deemed independent at all? If the courts serve as agents to preserve the core policies or interests of the government and deliberately avoid decisions that go against a regime's core political and economic interests, could they be considered to be independent based on demonstrating some instances of fairness outside those protected interests? Above all, whether in a democracy or autocracy, does judicial independence exist anywhere? The conclusion that I have reached is that those courts were not entirely independent; and further that actual judicial independence does not exist in any country – not even in countries considered to be “advance democracies” – if this “core interest of the regime” test is properly applied to them also.
Courts are only as independent as the ruling coalition allows them to remain. Martin Shapiro tried to present this clearly when he wrote the following:
“In the most basic and usually the least important sense, independence would mean that the judge had not been bribed or was not in some other way a dependent of one of the parties. But when we ensure this kind of independence by creating the office of judge within some governmental structure, in a far more important sense he is not independent, for he is a dependent of those for whom he holds office”
By this, the mere fact that courts are the creation of the political system means it is a part of it and that judging itself is part of the actions of the regime in maintaining social control and order. Courts therefore have to remain within the sphere of independence defined by the regime or they lose their power – this is what ended up happening to Egypt’s courts after 1998.
To illustrate this, had the courts in Zimbabwe and Uganda followed the same pattern of conformity as their Egyptian counterparts before 1998, by conscientiously assisting with the realization of the core political and economic interests of their respective regimes and avoided “red-line” issues, they would have maintained their power in a similar vein as the SCC in Egypt or the CCT in Turkey. To support this, Tamir Moustafa affirms that the courts in Egypt before 1997 struck a bargain by upholding the government’s core policies on property rights, housing, and even empowering the military courts and avoided making decisions that would diminish the regime’s exercise of power through the military courts. In some instances, they even delayed or refrained from delivering rulings on liberty issues that would be seen to undermine the military courts. Independence arising from such a bargain with the regime to assist it in its policies and agenda cannot be actual independence in the triadic sense. It is merely a compromise between allies, contingent upon each ally keeping his side of the bargain. It will likely fall apart when the regime feels threatened – which is what happened in Mexico, Zimbabwe, Uganda and ultimately, Egypt starting late 1997. It seems Sierra Leone’s judges understand this more than any other country as our supreme court has never ruled against the core interest of a sitting government.
This conclusion is more in line with Brinks and Blass’ argument that autonomy is a function of control by the rulers and not of the lack of it – by this, the courts derive their power (autonomy) from the ruling coalition. A more plural and diverse coalition usually leads to a more independent court due to the fragmented sources of power for the court. In other words, the more pluralistic the political actors are, the more autonomy the courts can enjoy - as was seen in Egypt and Mexico after 1990 onwards. This may explain why the degree of independence in multi-party democratic states are usually higher than in states that are believed to be under autocratic rule with concentrated power usually in one person or a body.
It is easy to draw the above conclusion for Egypt and Turkey because Moustafa and Belge presented a better historical account of the underlying motivations of the respective regimes they studied than Widner and Scher did. The latter’s piece was mostly limited to particular cases of demonstration of judicial independence, according to their limited definition of judicial independence, rather than provide a detailed background to enable one to sufficiently conclude whether in fact there was judicialization of politics in the same vein as was presented by Moustafa. For Uganda, what they presented could be regarded as more of a display of bravery by the judges and courts over a short period and on a limited issue as the granting of bail when their egos appeared to have been bruised by the abrasive actions of the military and the regime with regards to the specific cases involving the regime’s long-time foes – Besigye and his men, and not a consistent display of independence over a long period of time and on diverse issues.
JUDICIAL INDEPENDENCE IN DEMOCRACIES
While it is easier to point out that courts in autocratic states are not fully independent within my adopted definition at the beginning of this paper, the situation may be less outright in advance democracies like the United States of America. However, Martin Shapiro in his seminal work, “Courts: A Comparative Judicial Analysis”, had convincingly argued that courts are instruments of social Control in the hands of regimes. This, to him, makes them not to be independent in the sense that lawyers typically think them to be. They are essentially the tools of the regime used to maintain social control, among other things, and not the triadic independent third-party dispute settlers as conventional legal tutelage often presents them to be. This unconventional, but hardly discredited, criticism of courts was not limited to courts in non-democratic systems alone – it was in fact more with reference to courts in democratic systems than in non-democracies. It may have been assumed that judicialization was not possible in non-democratic states and the only way to test his theory would be to apply it to countries where it was assumed judicialization was present like France, United States of America, Germany, etc.
The difference is that, while in democracies judges may have a wider sphere of latitude within which they can exercise their independence - as long as the exercise of such power does not touch the regime’s guarded interests (referred to by Moustafa as the “red line”), they will maintain their bounded independence. The courts will face backlash which sometimes leads to the curtailment of their power (including their jurisdiction) if they do otherwise. These factors are present not only in known autocratic political systems but even in prototype democratic states like the United States of America or the United Kingdom. The only difference would be that the sphere of independence in democracies may be more elastic than in non-democratic states as a result of the more pluralistic source of power for the court which they often exploit to maintain their power.
The executive branch, in all countries, including the United States of America, has a huge control over policy and the direction in which the institutions of state carry out their functions. Because courts perform such an important role in keeping society together, it is utopian to think that a regime anywhere, be it democratic or autocratic states, would leave or want them to function absolutely independently. Take for example, the United States of America - every time a new president comes to power, there is usually a policy-shift based on his ideology or socio-political preferences, which is usually encapsulated in campaign promises before election. The courts, particularly the Supreme Court, most times play a key role in the success of the policy directions of the regime. It would not want to unsettle it. The courts therefore become part of the ruling coalition helping in the attainment of the regime’s policies. It maintains legitimacy by ensuring that in this complex political system with power well devolved, it does not make decisions on some issues that may seem to go against the core political interest of the regime. Robert Dahl rightly summarized this as follows with reference to the US Supreme Court:
“The Supreme Court is not, however, simply an agent of the alliance. It is an essential part of the political leadership and possesses some bases of power of its own, the most important of which is the unique legitimacy attributed to its interpretations of the Constitution. This legitimacy the Court jeopardizes if it flagrantly opposes the major policies of the dominant alliance; such a course of action, as we have seen, is one in which the Court will not normally be tempted to engage [in]”
Not many will disagree with this position - which then begs the question, if a prototype advanced democracy like the United States of America does not have an absolutely independent judiciary, does anywhere else have one? This would be most unlikely anywhere. This conclusion should be applied to Sierra Leone’s judicial decision-making history in detail and the constraints that prevent it from being independent since attaining independence in 1961.
THE UNDENIABLE TRUTH
Under what conditions, then, do courts obtain authority and autonomy? We know quite a bit already about the conditions under which courts can secure what I will call autonomy: the freedom to rule sincerely, according to judges’ own legal and policy preferences. By most accounts, autonomy is primarily a product of contextual political conditions, which might broadly be characterized as the fragmentation of the political arena (see, e.g., Cha ́vez 2004), typically measured either by the number and relative size of parties (Ginsburg 2003) or by the degree of executive control over the legislature (Cha ́vez 2004; Iaryczower et al. 2002).
Political fragmentation can have two distinct consequences that lead to more room for judicial autonomy. The first is uncertainty about future political outcomes and thus a motivation for current political actors to impose some (judicial) constraints on future electoral winners (Ginsburg 2003; Finkel 2004, 2005; Hirschl 2004). This mechanism operates more at the design/reform stage than later, but it can also affect judicial nominations and respect for the court once in operation. The second is the separation of powers argument, in which a less monolithic political environment simply makes it more difficult to punish judges who rule adversely to power holders (Epstein et al. 2001; Iaryczower et al. 2002). Institutional design factors have received less attention recently, but certain features, such as secure tenure, are typically considered essential preconditions for judges to feel unconstrained by important political actors (Helmke 2002; Herron and Randazzo 2003).
Politicians are aware that Judges are strategic actors, and so the focus tends to be on the possibility of acting, post-appointment, to punish or reward judges for their decisions. We should always ask when determining judicial independence “what is the costs that judges will incur if they always act sincerely?” Will they be rewarded with promotions or punished with malignment or purge? Judges ask themselves these questions more than we do and they certainly act based on their answer.
There is another way for politicians to (seek to) ensure favorable judicial outcomes, of course, and that is through the appointment process – what I will call ex ante control. Rather than appointing neutral players and counting on ex post incentives, politicians can appoint judges who share their policy preferences and leave them essentially free to act sincerely (Brinks 2005; Dahl 1957). Ex ante control is less precise because one can never fully predict how a particular judge will act or what issues will come before the court; long terms make it even chancier, of course, because both justices and the important issues are more likely to change the more time goes by. Long terms also allow more time for evolving institutional allegiances to supersede pre-appointment allegiances. This kind of control can, however, be more effective and less costly because it generates voluntary rather than grudging cooperation, it does not depend on costly confrontations between branches, it is exercised at a time when public attention may not be trained on the particular issue at stake, and it is usually not as visibly inconsistent with popular notions of judicial independence and the rule of law. In many instances, we might expect political actors to trade off one kind of control for another (Brinks 2005; Brinks and Blass 2009).
Whether ex ante or ex post, and putting aside for the moment the potential electoral cost of meddling with the courts, the ability to exercise institutionally determined levers of control is a function of the veto points defined by formal and informal rules, the thresholds required for their action, and the fragmentation of the political arena. Thus, for example, a system in which the president may appoint judges without intervention by any other actor – which is almost the case in Sierra Leone - gives the executive maximum freedom in selecting judges. A system that allows the president to select justices with consent from only a simple majority of the parliament gives the executive slightly less freedom when the same party controls the executive and the senate, constituting only the president’s own party as a veto player. This freedom diminishes even more if the president has only coalitional majorities in the parliament and dissipates further if an opposition party or coalition actually controls the legislature. Finally, a system that uses presidential nominations with the approval of a supermajority of the parliament allows less than majoritarian parliamentary actors to block approval but would give the executive continued control if he or she could count on a large majority in the parliament.
The same is true of rules – formal or informal – that permit the executive to replace justices, pack the court, or otherwise punish noncompliant judges. The point is, the formal or informal institutional context defines the relevant veto points and the thresholds required to exercise a veto, whereas the political context determines whether a single interest or party controls all the mechanisms of control or whether any action must satisfy multiple veto players with opposed policy goals.
One other factor that is likely to induce strategic considerations in judges is the likelihood of compliance. Judges are often acutely aware that, as Justice Goldstone, formerly of the South African Constitutional Court, has written,
“if orders made by courts are not conscientiously respected and implemented by the executive branch, judicial credibility will invariably be prejudiced, with possible critical consequences for the rule of law” (Goldstone 2008, xi).
There is considerable evidence that the probability of compliance often enters into the strategic calculations of judges and thus may affect their autonomy, as defined herein.
Judicial authority is a function of the interaction between the formal scope of authority given the court in its institutional design and the capacity of its likely constituencies to impose costs on the targets of adverse decisions. The scope of authority of a particular court is given by (1) the categories of conflicts the court is legally empowered to resolve, (2) the nature and range of actors empowered to bring conflicts to the court, (3) the degree of control over its own docket, and (4) the formal-legal effect of the court’s decisions. Scope of authority turns into actual authority when it is coupled with the ability to make decisions stick, that is, the ability to produce actual compliance.
Each of these parameters has a separate effect on the power the court can potentially exercise. Thus courts that can resolve constitutional conflicts are more powerful than courts that are limited to statutory interpretation, courts that can resolve both abstract and concrete claims are more powerful than those that do one or the other, and courts that can only resolve abstract claims within the first sixty days after passage of the law in question are less powerful than courts that can entertain abstract challenges at any time. Similarly, courts that can only entertain claims filed by a limited number of elected officials are less powerful than courts that grant broad standing to any citizen (let alone any resident, as the Hungarian constitutional court does) with a constitutional complaint. The French Conseil Constitutionnel, for example, became more powerful in 1974 when the range of actors who could bring abstract challenges was expanded from a list that included only the president, the prime minister, and the leaders of the two legislative chambers to include any sixty members (about 10%) of either the national assembly or the senate; it became more powerful still in 2008 when it acquired the capacity to judge concrete constitutional disputes on the basis of judicial referrals. These changes not only expanded the Council’s role from arbiter among equally majoritarian actors (who rarely used the court) to refereeing majority-minority conflicts; they also constituted other potential allies for the court – the Left when the Right was in power, and vice versa, in abstract cases, and citizens or interest groups in concrete review cases.
Already in 1981, Shapiro noted that the inevitable involvement of appellate courts – and, we might add, constitutional apex courts in particular – in lawmaking creates a dilemma for any regime. Courts must preserve the illusion of independence or they lose all claim to the social logic that gives them both utility and legitimacy. But if courts are making decisions that shape policy, they cannot be left free to follow their own whims. In response, he argues, regimes “can create systems of judicial recruitment, training, organization, and promotion that ensure that the judge will be relatively neutral as between two purely private parties but will be the absolutely faithful servant of the regime on all legal matters touching its interests” (Shapiro 1981, 32). The extent to which they succeed, of course, is a matter for empirical verification. Moreover, we might add that there is a distinction between judges who are “faithful servants of the regime” and judges who “unconditionally serve the current occupant of the executive branch”, as has too often happened in Sierra Leone.
Judges, when they are truly acting as faithful servants of the regime, will not necessarily endorse any and all executive or legislative policies. They are more likely to serve the regime when the systems of recruitment, training, organization, and promotion to which Shapiro alludes exist and work to enforce judicial orthodoxy but have not been captured by a factional interest. Indeed, in this case, their loyalty will be to the regime more broadly rather than to the current power holder – although their interpretation of what is in the interests of the regime will inevitably be colored by the preferences of that portion of the “national lawmaking coalition” (Dahl 1957) that has a determinative hand in their appointment.
The mechanisms of recruitment and training in a fragmented and pluralistic political context produces judges who are faithful servants of the regime but who have the autonomy and credibility to rule fairly on disputes that do not touch on core regime interests. They are protective of settled constitutional structures and understandings, including notions of due process and basic first-generation rights. This accounts for their fair – if absolutely mainstream in its caution and conservatism – approach to rights claims.
In terms of separation of powers, they are also generally fair but with a presidentialist bias. Presidential control over judicial selection ensures judges that are sympathetic to the president and his agenda. But given the president’s need to secure coalitional support for his nominees in the Parliament, the justices cannot be overtly biased and must be at least moderately sensitive to the interests of minority parties. They must be credibly neutral in the sense that they uphold commonly accepted interpretations of the law, do not bend to occasional pressures brought to bear by any one branch, and from time to time rule against the interests of dominant majorities.
Scholars of judicial politics have developed an impressive array of theoretical arguments to account for why governments might ever create courts empowered to constrain the state and for why such courts might ever exercise their power in practice. There can be no question that we know a great deal more about how judicial power works than we did at the beginning of this process. There are good reasons to suspect that politicians empower courts to solve credible commitment problems and to insure themselves against future electoral losses. There is considerable evidence that fractionalized politics provides the political cover necessary for judges to constrain arbitrary state action, and there is evidence that public support empowers courts, that judges believe it, and that they care about influencing it. This work all suggests that democratization may have a powerful influence on judicial independence and the rule of law. Yet it also seems that courts can be quite constrained, even in a democracy. Indeed, experience suggests that courts under democracy can be constrained but also reminds us that courts under democracies can be openly attacked. Despite these attacks, litigants bring cases, and courts sometimes challenge powerful, potentially dangerous political officials.
Existing theoretical models struggle to explain this behavior, but not because they are inherently misguided. Far from it. It is just that no model is able to put these behaviors together. The truth is, judges confront a core trade-off in difficult cases, especially when people are watching: a strategy of deference can avoid direct political conflict, but it risks creating inaccurate beliefs about judicial preferences, whereas a strategy of aggressive constitutional control may communicate accurate beliefs about preferences, but it risks a purge.
The way in which judges evaluate this trade-off can have important implications for interbranch attacks, the construction of judicial institutions, and ultimately for beliefs about courts.
While lawyers, mainly from common law backgrounds, price judicial independence, and belief in it forms the core of our legal education, the realistic position is that judicial independence, in the sense that judges make decisions at all times without external control, regrettably, does not exist. whether in a democracy or in an autocracy, the triadic model that lawyers are taught to believe exists to ensure fairness and the just dispensation of justice at all times is illusive. This is because, courts are an important instrument of social control to regimes; and keeping them in line with the regimes’ core policies and interests is certainly very important to all regimes. If judges step out of line, their power could be reconfigured by the regime, using any one of the tools of control available to them, including court packing, withdrawal of jurisdiction, threats, violence, etc., so as to restore the regimes’ balance of control over the courts. In other words, courts will remain independent as long as they are, overall, beneficial (by way of support) to the regimes in their country, and not a threat to it. They will assist the regime where the exigencies of maintaining their power demands. Failure to do so will attract the wrath of the regime irrespective of what political system prevails.
However, this does not mean that courts do not have their value in states like Sierra Leone where, as presented and analyzed above, judicial independence is merely guaranteed on paper. They may in fact display independence in cases that may not threaten the core interest of the regime. The issues that the regime usually regards as its “core commitments” may be few and shifting over time. The ruling coalition certainly would not have an interest in every case that comes before courts. This makes courts still very important and useful to citizens and does serve the purpose of settling or adjudicating disputes between them, sometimes, if not most times, fairly. For instance, even with the criticism of the US Supreme Court by several political scientists like Robert Dahl as being a part of the dominant political coalition fostering its key policies, it cannot be gainsaid that its display of independence is far above that of courts in autocratic regimes at some historical point in countries like Turkey, Chile, Argentina, Nicaragua, Egypt, Sierra Leone, Nigeria, etc. This is what keeps them relevant within the system. Regrettably, however, judges anywhere, are not as independent as conventional teaching of the law has sought to present them to be, and judicial independence is a mirage that shifts depending on the core interests of the regime. This does not mean that courts do not act independently in some instances. Courts can act more impartially in countries where there is less concentration of power in the President or when institutional arrangements do not leave the executive with as much control as exists in Sierra Leone. Another check on the ability to influence the decisions and actions of courts would be the degree of plurality that exists within the political system. The more pluralistic the political system is, the wider the courts’ sphere of independence may be.
Normative guarantee of judicial independence is useless. This does not however mean that courts do not have useful purpose in society. They are useful in maintaining order in society particularly where they are respected. The fact that it would be impracticable for the regime to have interest in all matters, and because societies in most countries have become more and more pluralistic, the impartiality of courts can be seen to exist without them necessarily being independent within the prototype definition of that word. But, like Shapiro had stated, and many have argued, the evidence is clear from democracies and non-democracies; that true independence of the courts is in fact a function of control by the regime and a figment of lawyers’ imagination.
I thank you all!!