Paper short abstract:

This paper presents case studies of conflicts over land and political order in southern African courtrooms. It argues that strategic models of judicial behaviour cannot explain tensions these have created with executives, and suggests instead that ideas of rights are now constitutive of key actors.

Paper long abstract:

Analysts of judicial politics in new democracies have typically concluded that rapid 'judicialisation' poses a threat to the embedding of courts in political systems. Before cementing their legitimacy in the eyes of the executive, that is, courts should be wary of encroaching upon its key prerogatives. This work, however, has been largely concerned with the study of courts' engagement with issues such as the legality of constitutional amendment, detention of opposition figures as security risks, eligibility of electoral candidates and presidential immunity. It has largely neglected the equally treacherous involvement of courts in fundamental disputes over political order. This paper presents case-study research on key judicialised conflicts over property rights regimes and associated forms of political authority in southern Africa. It focuses on cases involving seized commercial farms in Zimbabwe, indigenous rights claims in Botswana, and the direction of land reform in Namibia. It argues that these cases cannot explained by the 'thin' and 'thick' models of elite strategy common in the literature, but should instead be understood in ideational terms. They are in large part products of the regional spread of beliefs in rights since the 1970s, and the related collapse in older statist ideals. In political cases of this nature we cannot understand courts' dilemmas in purely strategic terms, because imperatives of institutional preservation clash with ideas and identities constitutive of judicial actors. This analysis is borne out by the often tragic consequences of the cases under examination for the courts concerned.