Accepted paper:

Who gets on the bench? Constitutional judges and the judicialisation of politics in Sub-Saharan Africa


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).

panel P045
Judicial elites in Africa: appointments and careers at superior courts