The Rule of Law, Judicial Corruption, and the Need for Drastic Judicial Reform in Sub-Saharan Africa’s Nation

Vol. 42 No. 3

By

Herbert A. Igbanugo (higbanugo@igbanugolaw.com) is a founding partner of Igbanugo Partners International Law Firm, PLLC, in Minneapolis. Born in Nigeria, Mr. Igbanugo heads the firm’s practice areas of international trade law and immigration and nationality law.

Creating a viable judiciary and strengthening its democratic functions have been main concerns of African national governments and donors over the last two decades. A common purpose of these various efforts, dating back to the 1950s and 1960s when colonial powers began pulling out of Africa, has been to make national legal systems function in a more efficient and fair manner.

Judicial reform is a very complex area involving a multitude of institutions and actors, and the phrase refers to efforts to improve the functioning of a country’s legal system in terms of both fairness and efficiency. The legal system encompasses the entire legal framework, including the constitution, statutes, regulations, customary law, and international legal obligations, as well as other institutions that interact to form the judicial process. Reform efforts in Sub-Saharan Africa have been made through various types of interventions, including: (1) legislative reform that develops the legal framework in response to the needs of the particular society and in accordance with international standards; (2) court reform that improves the courts’ efficiency, capacity, integrity, and responsiveness; (3) judicial administration reform that targets the efficiency of the legal process as a whole and increases the independence and authority of the judiciary; (4) legal community support to strengthen the quality of the legal process through establishing professional norms and standards that inform judicial accountability; and (5) reform of legal education and training through development of curricula and training methods capable of producing competent legal practitioners and professionals that will be more sensitive to the concerns and values of society. See U.N. Office on Drugs & Crime, Report of the Fourth Meeting of the Judicial Integrity Group, at 6–7, Vienna (Oct. 27–28, 2005) (available at www.unodc.org/pdf/corruption/publication_jig4.pdf).

The Plague of Judicial Corruption in Sub-Saharan Africa

Judicial corruption may be defined as acts or omissions that constitute the use of public authority for the private benefit of judges, court personnel, and other justice sector personnel that result in the improper and unfair delivery of judicial decisions. Such acts include bribery, theft of public funds, extortion, intimidation, influence pedaling, the abuse of court procedures for personal gain, and any inappropriate influence on the impartiality of the judicial process by an actor within the court system. Unfortunately, corruption in the judiciary has become widespread across Sub-Saharan Africa. When he assumed office in 2003, Chief Justice J.E. Gicheru of Kenya found that corruption in the judiciary had reached pandemic proportions. The maxim why pay a lawyer when you can buy a judge” had achieved notoriety, and the majority of Kenyan judges had become “the best judges that money can buy.” Id. at 6. The Uganda Law Society found that prisoners’ files were often “misplaced” when they were taken before magistrates in attempts to extract bribes from prisoners. U.N. Econ. Comm’n for Africa, Governance & Pub. Admin. Div., Deepening the Judiciary’s Effectiveness in Combating Corruption, Addis Ababa (Dec. 14–15, 2006), at 10, available at http://repository.uneca.org/bitstream/handle/10855/4652/bib.%2031947_I.pdf?sequence=1. One respected judge on the Court of Appeal of Tanzania related an incident in which a High Court judge asked for a million shillings in return for a favorable decision. Id. He added, “Clerks and support staff who operate their own rackets would go out and say: ‘If you want the favor of a judge, you must offer a figure commensurate to his stature.’” Id. These anecdotal accounts provide just a glimpse of the scourge of corruption that has spread across the judicial systems of the Sub-Saharan African region.

As the upholder of justice and individual rights, an impartial and incorrupt judiciary is essential to the good governance and development of any nation. A corrupt judiciary may negatively impact all sectors of government by stunting trade, economic growth, and human development, as well as by depriving citizens of justice. Combating judicial corruption must be of paramount importance to Sub-Saharan Africa.

Methods of Reform

In order to fight this corruption, Sub-Saharan Africa must embark on a process of reform that begins with understanding and emulating the characteristics of an uncorrupt system. Judicial systems that routinely provide adequate access to justice and timely and impartial delivery of justice and that generally uphold the rule of law typically display five main qualities: independence, integrity, accountability, transparency, and efficiency.

Judicial Independence

Perhaps the most important element of judicial reform and anticorruption is the independence of the judiciary, including independence from the executive and legislative branches of government and freedom from political and social influences. The constitutions of the majority of Sub-Saharan African states mandate judicial independence. For example, Article 78 of the Constitution of Namibia dictates:

The Courts shall be independent and subject only to this Constitution and the law. No member of the Cabinet or the Legislature or any other person shall interfere with Judges or judicial officers in the exercise of their judicial functions, and all organs of the State shall accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law.

Justice A.M. Akiwumi, Towards an Independent and Effective Judiciary in Africa at 2, Speech at African Development Forum, Governance for a Progressing Africa, Addis Ababa (Oct. 11–15, 2004).

Article 125 of the Constitution of Ghana and Article 128 of the Constitution of Uganda contain similar provisions.

Despite these assertions of judicial independence, many Sub-Saharan African countries face a judicial system constrained by the influence of other institutions of government and society. A major factor inhibiting judicial independence is the control of the executive branch over elements such as the appointment, promotion, and remuneration of judicial officers and the judicial budget. The selection and appointment of judges and other judicial officers also rests with the executive branch. See U.N. Econ. Comm’n for Africa, African Governance Report 2, at 130–33 (2009), available at http://uneca.africa-devnet.org/files/african_governance_report_ii.pdf. Thus the prospects of career mobility for judges often depend on political patronage.

One possible approach to avoid external pressures in the selection of judicial officers is to institute a council of judicial personnel who are solely responsible for the selection and appointment of judges. The constitutions of numerous African nations provide for the establishment of Judicial Service Commissions, comprised of judges and other members of the legal profession, to recommend or nominate judicial officers. However, these commissions also often consist of delegates designated by the executive. Akiwumi, at 6.

Another approach is to allow the election of judges by the public. However, the selection of judges by election may also threaten the independence of the judiciary by leaving the system open to political influence and potential corruption. Regardless of which approach is implemented, judicial selection should involve independent screening of candidates and the establishment and publication of objective selection criteria based on factors such as merit, competency, and experience.

In addition, judicial tenure must fall within the independent discretion of the judiciary. Where judges serve short terms that are subject to the whims of political authorities, the judiciary is especially susceptible to political influence and potential corruption. Lifelong tenure for judicial officers (subject to good conduct and a mandatory retirement age) or set terms of office often promote judicial independence. To reinforce judicial independence and the doctrine of separation of powers, states must impose a system that prohibits removing judicial officers in a way that vests sole executive control over court proceedings.

Adequate remuneration for judges and other court personnel and protection against arbitrary reduction or suspension of pay are essential to combatting corruption and increasing public access to justice. Poor remuneration leads to reduction in motivation and commitment to the judicial system and can often lead judicial officers to seek bribes as a means of achieving financial security.

Moreover, the assurance of adequate budgetary resources and administrative autonomy over the use of judicial funds are necessary elements for the promotion of judicial independence. The budget and funds of the judiciary in many Sub-Saharan African nations are controlled by the executive branch of the government, often in the form of a Ministry of Justice. This control over judicial funds allows the executive branch to exert influence over the actions of the judiciary, often fueling corruption and further reducing the independence of the judicial system. Instead, the judiciary needs to play a substantial and direct role in the formulation of the judicial budget and the administration of funds.

Furthermore, withholding resources puts pressure on judges and threatens the impartial administration of justice. Lack of adequate monetary resources may leave judicial officers vulnerable to corrupt political pressure from other branches of government. In addition, inadequate resources may further the ineffectiveness and inefficiency of the judicial system. Adequate funds are needed to attract the best and the brightest workforce, provide reasonable working conditions, implement education and training on ethical conduct, and improve the efficiency of court administration.

Efforts to promote judicial independence are essential to the control of corruption and the promotion of economic development. By creating an autonomous system for the selection of judicial officers, securing judicial tenure and remuneration, and safeguarding against improper removal, Sub-Saharan Africa can present a cohesive front against corruption in the judicial system.

Judicial Integrity

Judicial integrity, another tool against corruption, is deemed the heart and soul of the rule of law. To support a judiciary that embodies integrity, it is necessary to establish clear codes of conduct, provide ethics training and education to judicial officers, and create adequate mechanisms for receiving complaints from the public and from other judicial officers.

A clear code of conduct, which provides a model for ethical judicial behavior, is essential to reform. The most widely used ethics code is the 2002 Bangalore Principles of Judicial Conduct. USAID Office of Democracy Governance, USAIDProgram Brief, Reducing Corruption in the Judiciary (June 2009), at 12, available at http://pdf.usaid.gov/pdf_docs/PNADQ106.pdf. The Bangalore Principles present six values essential to the proper performance of judicial office and to the maintenance of high standards of judicial conduct. U.N. Office on Drugs & Crime, The Bangalore Principles of Judicial Conduct, Round Table Meeting of Chief Justices, The Hague, (Nov. 25–26, 2002), available at www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf. These values include (1) independence, (2) impartiality, (3) integrity, (4) propriety, (5) equality, and (6) competence and diligence. The Bangalore Principles are “designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct,” while “presuppos[ing] that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge.” Id. at 11. While it is not necessary for Sub-Saharan African nations to adhere directly to the Bangalore Principles, implementing and following a similar code of ethics will aid in the protection of judicial integrity and efficacy.

Judicial ethics training and education programs will also help strengthen the integrity of the judicial system and reinforce ethical behavior in judicial officers. One ethics training program implemented in Nigeria, in combination with various other anticorruption initiatives put into practice in the Nigerian judiciary, led to significant positive progress in the areas of rule of law and control of corruption since 2003, according to the World Bank’s 2008 Report, Governance Matters. USAID Program Brief, Reducing Corruption in the Judiciary at 15.

Judicial Accountability

Holding judicial officers accountable for their conduct is a necessary prerequisite to an efficient and effective justice system. Accountability requires not only strict adherence to codes of conduct and ethics but also appropriate punishment for breaches of those ethics. Article 11 of the UN Convention Against Corruption emphasizes the importance of judicial accountability, and it indicates that “each State Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary.” U.N. Office on Drugs & Crime, United Nations Convention Against Corruption, New York, ch. 2, art. 11, at 13 (2004), available at www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf.

While the appeals process presents one appropriate accountability mechanism with regard to judicial decisions, other methods must also exist to ensure that judges are accountable to the public and punished for lapses in ethical conduct. Investigation and punishment for corrupt acts must be fair and consistent. Proceedings in corruption cases must also be efficient, transparent, and in line with the constitution and the laws of due process of the state.

Furthermore, the judiciary should be open to complaints and suggestions from the public while also protecting judicial officers from frivolous and groundless accusations from individuals or institutions seeking retribution for past adverse judgments. This requires a formal system for the lodging of complaints and standardized and publicized procedures for investigation and review.

Judicial Transparency

Open access to the public and transparency in procedures and actions of the judiciary further promote an effective and incorruptible justice system. USAID suggests six critical steps to maintaining transparency in the judiciary, including:

  • Annual reports by the judiciary on its activities, financing, governance, and organization;
  • Publication of laws and judicial opinions;
  • Public access to judicial proceedings;
  • Declaration of assets and income by judges and senior judicial staff;
  • Civil society monitoring of the administration and operation of the courts; and
  • Working through the media, including press offices in the judiciary and training for journalists. USAID, Reducing Corruption in the Judiciary, at 16.

A right to information is necessary to enhance judicial transparency, raise public awareness about corruption, and allow society to engage in the fight against corruption. Article 10 of the UN Convention Against Corruption emphasizes the need for public information regarding the activities and legal decisions of the judiciary, stating that State Parties shall “take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decisionmaking processes, where appropriate.” United Nations Convention Against Corruption, ch. 2, art. 10, at 13. The Convention lists a number of exemplary measures, including transparency to the public in organization operations, simplified administrative procedures, and publication of reports. Id.

Part of this right to information includes publicizing laws and case decisions in order to promote public understanding of the law. Unfortunately, the publication of statutes, judgments, and other pronouncements of the courts has been neglected by the judiciaries of many Sub-Saharan African nations due to a lack of adequate resources or efficient mechanisms for publishing and disseminating legal information. Private commercial law publishers may aid in the dissemination of legal information. However, private publishers seek to earn commissions for the publication of legal materials, and the high levels of poverty in many Sub-Saharan African nations make the widespread purchase of legal materials highly unlikely. The lack of consistent and adequate Internet access across the Sub-Saharan African region also restricts accessibility to legal information.

Public access to information regarding the assets and income of judicial personnel and the financing of the judiciary may also help enhance judicial transparency and further the fight against corruption. The disclosure of the assets and income of judges actually may help to promote judicial transparency by increasing the public’s faith in the impartiality of the judiciary and assuring the public that judicial officers are not being influenced by external interests.

Finally, publicizing information related to the financing of the judicial system promotes transparency. Article 9 of the UN Convention Against Corruption suggests that the judiciary enact “the public distribution of information relating to procurement procedures and contracts” and ensure the “[t]imely reporting on revenue and expenditure.” Id. at ch. 2, art. 9, at 12–13.

Judicial Efficiency

Perhaps one of the most challenging but essential areas of improvement for Sub-Saharan African judicial systems lies in the efficiency and organization of the judiciary and the court systems themselves. An efficient and effective judicial system minimizes opportunities for delay, abuse, and corruption and provides timely public access to justice.

The first step towards increasing judicial effectiveness and efficiency lies in the automation of court management and the adjudication process. Computerization of records allows for easier access and better organization and prevents the loss of paper files and improper interference with documents.

Another area that is particularly susceptible to corruption and abuse is the judiciary’s discretion in deciding which judge will preside over each case. Computerization and automation of case assignments provide an efficient method for achieving a randomized case assignment system. Setting up automated systems for the random assignment of judges to cases will allow other Sub-Saharan African judiciaries to safeguard against potential abuse.

Finally, increased access to justice and the judicial system may be achieved through the implementation of alternative dispute resolution methods. These methods will not only increase public access to justice, but will also reduce the burden on the judiciary, allowing resources to be devoted to anticorruption and the more efficient and effective resolution of cases. Nigeria has implemented an alternative dispute resolution system that has proven effective in increasing access to justice and judicial efficiency. The Citizens’ Mediation Centre (CMC) processes legal disputes through mediation for individuals who cannot afford to go to court. See, e.g., Justice for All—Nigeria, Legal Assistance and Advice Provided Through Law and Mediation Centres (2010), available at www.j4a-nigeria.org/joomdocs/Law_Mediation_Centres.pdf. It entails a public complaince office that receives complaints, analyzes whether the claim and the claimant are suitable for mediation, and then refers them to a mediator employed by CMC. Id. Similar effective systems of alternative dispute resolution will lighten the burden on judges and court systems in Sub-Saharan Africa. By decreasing the volume of cases seen by judges, alternative dispute resolution will allow the judiciary to devote more resources towards anticorruption measures.

Formulating and Designing a Reform Plan

For judicial reform projects to enjoy viability, attention must be paid to all stages of the reform process. In the design phase, ensuring proper diagnostics and appropriate project design, including relevant stakeholders, and fitting the specific project into a larger reform context are all crucial. At the implementation phase, success depends on proper coordination of efforts and the extensiveness of the reform protocol. At the evaluation phase, relevant indicators must be developed to assess the project. Finally, having adequate local political, financial, and administrative support is a crucial factor, since donor initiated reform efforts without internal political buy-in are seldom sustainable.

Some of the greatest obstacles to judicial reform efforts in the emerging markets of Sub-Saharan Africa include: (1) too little participation by the lawyers, legal professionals, and others in the target country who would either have to carry out the reforms or who would be affected by them; (2) an exclusive focus on the formal legal system to the exclusion of customary law and the other informal ways to resolve disputes; and (3) lack of cultural sensitivity, as the American legal system was exported to foreign countries without factoring the local legal culture, sensitivities, and environment into the equation. Because of a lack of local initiative and generally insufficient diagnosis of existing problems, patterns of judicial reform pursued by international actors have not been successful, since they have tended to be highly standardized, transplanted, and superficial, as opposed to policy proposals that reflect specific local needs and power relations. See The World Bank, The World Bank: New Directions in Justice Reform: A Companion Piece to the Updated Strategy and Implementation Plan on Strengthening Governance, Tackling Corruption (May 2012).

Strong diagnostics should inform the design of interventions by providing data on the actual functions of the justice system, the political economy of reform and its risks, and the way potential reforms might translate into progress towards justice. The approach should be clear throughout the project cycle, from design to monitoring and evaluation. Unfortunately, there is limited empirical data on the functioning of justice systems in many Sub-Saharan African countries, and even less evidence on the impact and dynamics of reform efforts. This is consistent with the technological obstacles in Sub-Saharan Africa, and as a result outcomes are difficult to measure, causal chains are hard to trace, and reform processes are lengthy. Id. However, there is still hope for judicial reform.

To be successful, reform efforts should be strategic and targeted to prove fruitful, and interventions should focus on the identification and resolution of binding constraints that may impede improvements to justice system performance. Reform strategies should take on concrete functional problems, rather than pursue an ideal justice system model.

For example, particular emphasis should be placed on strengthening the human resources of justice institutions. In the past, reforms have struggled in Sub-Saharan Africa because of a lack of in-country court professionals who are interested in, and capable of, their implementation. Therefore, training of justice sector staff and supporting a cadre of people who have the authority and capability to lead reforms are crucial to success. Id.

Also, reform needs to incorporate the experiences of justice institutions at the local level. Taking account of the experience of justice at the local level, including that of hybrid and customary institutions, will benefit justice reform projects because the most important institutions of justice lie outside the formal system for many citizens of Sub-Saharan African nations. Engaging with the complex relationship between customary and formal justice systems is certainly relevant in this context. Id. In addition, budgetary concerns and financial efficiency can be addressed by translating core public sector management expertise to justice sector institutions. Areas like budget reform, financial management, and human resources are critical for improving the performance of any state institution. It is possible to modernize management by incorporating performance data and meritocratic principles into budgeting and human resources management—without compromising independence. Id.

Rather than starting with the question of how to modernize the court system, such efforts should begin by evaluating where the justice system fails, which failures function as constraints on advancements in development, and, given the resources available on the local level, what steps can be taken towards a better system. Id.

Conclusion

Many Sub-Saharan African nations have taken great strides towards eliminating corruption in the judiciary. However, there is still much room for improvement. For African judiciaries to be effective in combating the plague of corruption endemic in the region, the judiciary institution itself must be completely rid of corruption. Positive steps can result from focusing on judicial independence, integrity, accountability, transparency, and efficiency. By promoting these principles, Sub-Saharan African nations may achieve more transparent judicial systems that embody the ideals of impartiality, efficiency, efficacy, and commitment to the rule of law.

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