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LEGAL STANDING

African Union takes a step towards monitoring judicial independence on the continent

African Union takes a step towards monitoring judicial independence on the continent
The 77th Ordinary Session of the African Commission on Human and People’s Rights (ACHPR) that took place in Arusha, Tanzania between 20 October and 9 November 2023. (Photo: X / @achpr_cadhp)

In a significant move that could see the African Union increase its efforts to strengthen judicial independence in Africa, the African Commission on Human and People’s Rights adopted a resolution to appoint an official to keep track of judicial independence in Africa.

The African Commission on Human and People’s Rights adopted a resolution to appoint a Focal Point on Judicial Independence in Africa at the the 77th Session of the African Commission on Human and People’s Rights (ACHPR) that took place in Arusha, Tanzania between 20 October and 9 November 2023.

The resolution means someone will be appointed to act as a mechanism for the independence of judges and lawyers, to better monitor and document threats to judicial independence.

For a long time African civil society actors, lawyers, human rights defenders, the business community and academics have expressed concerns about threats to the independence of the legal profession and the judiciary that are rampant in many parts of Africa, that have undermined public trust and confidence in judicial systems.

The African Charter on Human and People’s Rights is quite unequivocal about the need for protecting judicial independence and the right to a fair trial. 

Article 7 of the African Charter requires every individual to have the right to have her/his cause heard including “the right to be presumed innocent until proved guilty by a competent court or tribunal” and the “right to defence, including the right to be defended by counsel [lawyer] of her/his choice” and “the right to be tried within a reasonable time by an impartial court or tribunal”. 

Article 26 of the African Charter requires states to “guarantee the independence of the courts”. 

To give greater effect to these articles the African Commission in 2013 adopted Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.

An independent judiciary is necessary to uphold the principles of justice, protect individual and collective rights and ensure observance of the rule of law. Without an independent judiciary, there cannot be effective checks and balances against excesses by the other branches of the government, especially the executive.

A state can hardly have an impartial and transparent legal system that inspires trust and confidence in fair adjudication of disputes if the judiciary is not independent and when the legal profession faces threats for exercising their responsibilities as lawyers. An independent and impartial judiciary is a prerequisite for nurturing a democratic, just, peaceful and inclusive Africa. 

This is quite important at a time Africa is experiencing challenges of unconstitutional changes of government characterised by coups and ascendance to power through irregular electoral processes or other undemocratic means. 

As Africa enters into the implementation phase of the Africa Continental Free Trade Agreement (AfCFTA), a larger part of business confidence will depend on how African jurisdictions will have nurtured independent and impartial judiciaries. An intentional systematic monitoring and documentation of threats to the independence of judges and lawyers will be key to the success of AfCFTA.

It was a strong coincidence that the 77th Session of the African Commission happened at the same time and in the same town as the Southern and East Africa’s Chief Justices Forum (SEACJF) was holding its annual summit.

The chairpersons of these two organisations that are important for entrenching the rule of law in Africa, Prof Remy Ngoy Lumbu (the African Commission) and Chief Justice Shivute of Namibia (SEACJF) met on the sidelines of their respective meetings and emphasised the importance of the African Commission adopting some mechanism for monitoring the threats to judicial independence and threats against members of the legal profession. 

The Africa Judges and Jurists Forum (AJJF) coordinated the meeting. Upon learning of the resolution of the African Commission, Chief Justice Shivute, who has been a strong champion for the rule of law in east and southern Africa said this was a “giant leap” in the quest to protect judicial independence in Africa.

During the session of the African Commission, key civil society groups such as the Pan African Lawyers Union, African Defenders, Southern Defenders and the AJJF raised the need for the African Commission to adopt a mechanism for the independence of judges and lawyers to better monitor and document threats to judicial independence in Africa. 

Joseph Bikanda, coordinator of African Defenders, who played a pivotal role in the campaign for the mechanism said that as African Defenders and sub-regional human rights defender networks, they were acutely aware that a judiciary that lacked independence and impartiality was a threat multiplier to the risks that human rights defenders faced and to the closure of civic space. 

“We therefore welcome this development and look forward to receiving the text of the final resolution to understand what role we can play as CSOs and how best we can assist in ensuring that the mandate responds to the needs expressed by different stakeholders,” said Bikanda.

The United Nations has a Special Rapporteur on Independence of Judges and Lawyers (UNSRIJL) with the current incumbent being Margaret Satterthwaite, an international human rights scholar and practitioner. The UNSRIJL was established by the UN through resolution 1994/41 “in the light of the increasing frequency of attacks on the independence of judges, lawyers and court officials, the weakening of safeguards for the judiciary and lawyers and the gravity and the frequency of human rights violations”. The UN mandate is global in nature and is stretched. 

It is hoped that the mandate to be created by the African Commission will complement the UNSRIJL mandate and the combined effect of both being to create a strong basis for the strengthening of the independence of judges and lawyers in Africa. DM

Arnold Tsunga is a human rights lawyer, the principal managing partner at Tsunga Law International and Convenor of Civic Space Network Africa.

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