P045


Judicial elites in Africa: appointments and careers at superior courts 
Convenors:
Alexander Stroh (University of Bayreuth)
Jan Budniok (Universität Hamburg)
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Format:
Panels
Location:
KH112
Start time:
30 June, 2017 at 16:00 (UTC+0)
Session slots:
1

Short Abstract:

Judges of superior courts in Africa are part of the national elites and surprisingly underexplored across disciplines despite of their important political and societal role. This panel explores appointments, careers and the consequences of the socio-political composition of superior court benches.

Long Abstract

Surprisingly, constitutional review bodies and other apex courts beyond the U.S. Supreme Court attracted very little scholarly attention from the social sciences for a long time. After all, constitutional and supreme courts have become important political players around the world and, of course, this "rise of world constitutionalism" (Ackerman) has not excluded Africa. Thus, scholarly production about African cases is increasing, but relatively slowly. Kanté and Ngenge took legal-institutional perspectives. Others, including Ellett, Fall, Gloppen, Roux, and VonDoepp, analysed the socio-political relations in general. Yet, individual African judges have rarely been studied despite Widner's seminal work on Tanzania's former Chief Justice Nyalali.

Though the institutional set-up varies across Africa, most apex courts share the legal authority to review laws and other political acts or to mediate in politics. This turns superior court judges into key socio-political actors. So, the panel seeks to promote the emerging debate on judicial elites in Africa (e.g. Dezalay 2015) by connecting to work on other regions (e.g. Epstein/Segal 2005, Malleson/Russell 2006) without neglecting specific conditions on the continent. Therefore, interdisciplinary exchange among legal scholars, social anthropologists, sociologists, and political scientists shall be further intensified.

Accepted papers:

Authors:

Peter Brett (Queen Mary University of London)
Sara Dezalay (Cardiff School of Law and Politics)

Paper short abstract:

It is generally held that the judicialisation of politics inevitably politicises the judiciary. In Africa, however, this hypothesis has not been systematically tested. This new project will attempt to do so, studying constitutional judges' careers in Côte d’Ivoire, Burundi, Botswana and Namibia.

Paper long abstract:

Since 1990, there is a growing judicialisation of politics in Sub-Saharan Africa. However, there is is no systematic data measuring the impact of this trend on judicial independence or the quality of democratization on the continent. Focused on constitutional judges in four Western, Central and Southern African countries - Côte d'Ivoire, Burundi, Botswana and Namibia - this paper outlines the preliminary hypotheses and fieldwork of a research project sponsored by the British Academy/Leverhulme Trust. The objective of our research is to assess the conditions where increasing formal judicial independence accompanies substantive judicial autonomy. Research on other world regions suggests that judicialising politics inevitably politicises the judiciary (e.g. Malleson and Russell 2006; Hirschl 2008). By contrast, we apply a sociohistorical approach to judicialisation (e.g. Vauchez 2008) in our four country case-studies, by investigating the profiles and trajectories of all judges entrusted with statutory and constitutional judicial review mandates since 1990. Our hypothesis is that judicial autonomy is conditioned by the strength of domestic legal fields in relation to political elites (e.g. Ellett and VonDoepp 2011; Cooper 2004; Dezalay 2015). Tracing judicial careers and professional patterns beyond formal rules of appointment, our research will thereby measure the empirical significance of social ties with national elites, regional and international connections, and donors for judicial autonomy. The outcomes of our research are intended for academic and policy audiences interested in rule of law reforms and they are also designed to contribute to an open-access database of judicial profiles in Sub-Saharan Africa developed in collaboration with an international network of researchers (Africa/Germany/UK/US).

Author:

Annalena Kolloch (Johannes Gutenberg University Mainz)

Paper short abstract:

This paper looks at judicial careers and appointments of judges and prosecutors in Benin. After giving an overview of appointment politics and determinants of promotion, the paper investigates the social structure on the bench and historical differences in career management since the 1960s.

Paper long abstract:

This paper is based on empirical fieldwork on judicial careers and appointments of judges and prosecutors in Benin at all court levels. This is done in the context of the fact that magistrates in Benin don't have any influence on their first appointment. In real practice, the determination of their career development is influenced by several actors. Judges and prosecutors are nominated by decree from the state president, by proposition of the minister of justice and opinion of the Conseil supérieur de la magistrature. According to magistrates, the minister of justice exercises considerable discretion, depending on personal and financial politics. This paper looks at a sample of individual career paths to illustrate the argument.

This paper also investigates the social structures framing the bench and the bar and the reasons why young lawyers choose the path of being a magistrate over other legal careers. A historical approach traces the development of the judicial profession and career mobility since the 1960s. It is significant that there seems to be a distinction between the older and the younger judges working in Benin today. In the 1970s and 1980s judges entered the bench directly after finishing law school but young lawyers who finished their studies in the 1990s and 2000s worked for years as teachers, police officers or NGO helpers. This paper interrogates the impact of this difference in entry to legal practice.

Authors:

Alexander Stroh (University of Bayreuth)
Jan Budniok (Universität Hamburg)

Paper short abstract:

Who gets on top level court benches in Africa? How are professional and socio-political expectations addressed? Do formal institutions or informal politics shape the appointments? Combined legal-institutional and biographic analysis seeks to explore what qualities matter to become a powerful judge.

Paper long abstract:

The role of courts in non-Western polities has received rising academic attention in recent years. Important research included the politicization and independence of courts as well as the judicialization of politics. In sub-Saharan Africa, the independence issue is still predominant. Though the importance of informal activities have been highlighted and the effect of personalities and personal relations has been acknowledged, formal institutional analyses are most advanced. Studies that put the acting people at the centre of research are surprisingly rare.

This paper thus proposes a systematic survey and categorization of personal features that determine judicial careers in Africa. We focus on top level judges that are involved in constitutional review. We assume that appointments to these positions are particularly prone to face professional and political interests that require different, maybe even distinct personal characteristics. First, we map the legal requirements across all Anglophone and Francophone ECOWAS member states. Second, we approach informal and political features by analysing the specific biographies, careers and socio-political backgrounds of judges appointed to Benin's and Ghana's highest courts.

The sub-regional focus has mainly pragmatic reasons but also represents an interesting variance of historical legacies and political developments with common judicial standards embodied in the Community Court of Justice. The selection of Benin and Ghana allows to focus on the common vs civil law divide under democratic conditions for which individual judge data was made available by original ethnographic work. Methodologically, the paper thus combines approaches from legal studies, social anthropology and comparative politics.