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RIGHTS-AFRICA: Extending Constitutional Justice

Stephanie Nieuwoudt

CAPE TOWN, Jan 24 2009 (IPS) - Jurisprudence in Africa has improved a lot since the early 1990s, but a lot of work still has to be done to improve justice structures across the continent.

Speaking to IPS at the first ever World Conference on Constitutional Justice, held in Cape Town from Jan. 22 to 24, Gianni Buquiocchio, secretary of the Venice Commission, said that there can be no real democracy in a country without an independent judiciary.

Close to 3,000 supreme court and constitutional judges from across the globe gathered for the conference to facilitate interaction, cooperation and discussion between courts. The conference was hosted by the Constitutional Court of South Africa and the Venice Commission, an advisory body of the Council of Europe on constitutional issues. Taking place soon after the 60th anniversary of the Universal Declaration of Human Rights in 2008, the conference’s ultimate aim was to promote human rights.

“We are holding a mirror to the world in which all the defective court systems across the globe are reflected. Courts fail the people when they abuse public trust and don’t function effectively,” Chief Justice Pius Langa of South Africa told IPS.

South Africa’s judicial system was lauded by many speakers, but Buquiocchio cautioned that if constitutional courts and other judicial bodies are not respected by the authorities, the rule of law comes under threat.

His comments followed recent attacks by the ruling African National Congress (ANC) party in South Africa on the courts after the Supreme Court of Appeal reversed a previous ruling by the High Court that the prosecution of ANC leader Jacob Zuma on corruption charges was unlawful on procedural grounds.

President Kgalema Motlanthe of South Africa said: “Recent assertions in the local and international media that the judiciary is being undermined are untrue and without basis.” Yes, he said, there was debate, and “sometimes this debate can get a little heated,” but “this debate is essentially beneficial to our fledgling democracy, which is being deepened as a result.”

Some speakers expressed concern about state interference in the judicial process and disregard for human rights by the authorities.

“Today we experience in our subregion instances of political excesses which denigrate the supremacy of the constitution for political expedience. Party supremacy seems to be gradually displacing the supremacy of the constitution,” Justice S N Peete of Lesotho said.

In Southern Africa, Zimbabwe is one country which is constantly in the news for human rights abuses and for a lack of effective judicial structures. In a recent interview with IPS, Jenni Williams, a founder of the human rights organisation Women of Zimbabwe Arise, said that history will judge the leader of the country, Robert Mugabe harshly for the human rights abuses under his watch.

Lesotho does not have a constitutional court, even though the Chief Justice can order the High Court to sit as a Constitutional Court from time to time. “Our constitutional history – hence its jurisprudence – is still in embryo,” Peete said.

Justice Jani Leornard Fongoh of Cameroon argued that in general, ordinary courts fared well in protecting individual rights, but “the sector that is still slippery is that between individuals and the state, which is all-powerful”. For proper human rights enforcement when the individual’s rights are “violated by the state through its agents,” constitutional courts were needed.

Cameroon’s constitution incorporates international treaties on human rights in its preamble, but enforcement mechanisms are not specified, which opens the door to different interpretations by different judges. The country did get a Constitutional Council in 2004, and although this body’s work is still being done by the Supreme Court on a case-by-case basis, it has started to flex its muscles. In several election cases, there have been rulings against the state. This has strengthened the public’s confidence in constitutional jurisprudence.

The highest judicial organs are no longer seen as “mere rubber stamps of the Executive,” Fongoh said, but as “a genuine judicial power that is ready to take its stance as dictated by the law, regardless of who the parties are.”

In Southern Africa, Mozambique got a Constitutional Council in 2003. Landmark rulings since then include declaring a presidential decree unconstitutional and reaffirming the right of citizens living abroad to vote in elections and be elected to public office.

Corruption in their own ranks was of great concern to some of the judges IPS spoke to. A senior constitutional judge, who asked to remain anonymous, said: “In some countries it is common for judges to be bribed to deliver a verdict in favour of one of the parties.”

According to a report by news network, two Kenyan High Court judges were last year suspended after being found guilty of tampering with justice. And in October last year, human rights watchdog Amnesty International released a report condemning Nigerian judges for turning a blind eye to torture and condemning to death people who pleaded guilty to criminal charges under duress.

The need to ensure that justice was available to all people in equal measure was stressed by Motlanthe. He said a person living in poverty would find it difficult to appeal to a higher court if he were unhappy with the decision of a lower court because of high legal costs. “The poor and downtrodden often get the short end of the stick in comparable legal conditions,” he said.

Justice Albie Sachs of South Africa’s Constitutional Court told IPS that the good attendance by judges from all corners of the world was a clear indication that there was a need for interaction and exchange.

“The speeches being made here are not about bragging how wonderful the different countries are, but they are serious, practical and modest statements about the expansion of constitutional justice. Constitutional justice is getting normalised and accepted throughout Africa,” he said.

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