To judicialize or not to judicialize?
You know when people ask, ‘How did we get here?’ I sometimes think maybe we never really left that given place to begin with. The courts may have been part of the politics all along, quietly shaping who wins and who loses. But why do I say this? Probably because much has been said about this daunting aspect – ‘judicialization’, but we are still here trying to interrogate what it really entails. Apparently, to judicialize according to Torbjoin Vallinder is to treat judicially in order to arrive at a judgment or decision upon.[1] The judicialization of politics which is the patent subject matter of discussion in this piece on the other hand means the transfer of decision-making rights from the legislature, the cabinet, or the civil service to the courts.[2]
Overtime, law has been a tool that has been mainly designed to protect the interests of dominant socio-economic groups and hence remains un-evasive to the broad brush of politics.[3] Thus, even an issue that may appear political on its face can raise dust on account of its challenge to the dominance of a particular section of society.[4] Drawing traits from Marxian tradition we can also say that what the courts decide is dictated by the political, social, and moral views of the individual judges.[5]
Additionally, the political aspect can be explicitly noted to have a rather strong footing with regard to the court system. First, there exists a mode of selection of judges and other set of officials through the utilisation of the mechanism of an election or interviews.[6] However, the majority prefer a more staid method expected to come with the occupancy of a chair. Such methods tend to reproduce privilege and status and to preserve the status quo as opposed to transforming an institution that should be a broad reflection of society.
Most of the court’s judges have subscribed to the first cause rather than the latter, deviating from conventional legal and judicial norms. In the current times, even the most stoic defenders will claim that courts have nothing to do with politics. Others would even go an extra mile to swear on the tombs of their ancestors. If that were indeed the case then the selection of individuals to occupy the higher judicial benches would be an inconsequential matter.[7] The Courts or the legal system indeed seems to be eclipsed by politics but the question that ought to be raised: is which ‘political’ aspect do courts tend to lean towards?
When courts do politics?
Answering such a question is by no means straightforward. It depends first on how the word ‘politics’ is defined since the word political has myriad meanings.[8] For example, Switzerland takes some precautions when selecting their nominee judges respective to the political parties they belong to.[9] Due to this, provisions of highly charged social and political issues invariably find their way into the judicial system evolving the court into a battlefield where many political battles have been fought, some won and some lost. Such an exception appears in Kenya, except for the appointment of Chief Justice Willy Mutunga where the appointment process of judges in East African countries is less public and politicized.[10] However, the inordinate delay in appointing a new Chief Justice in Uganda resulted in a court challenge to the president’s attempt to re-appoint the incumbent.[11]
The operation of the three arms of the government and their divisions which are the judiciary executive and legislature are sealed and impermeable. In this case, the legislature comes up with the laws. The judiciary simply interprets the law while the Executive is only concerned with the design of policy and implementation of policies. Based on this, judges do not make laws – though, this is albeit debatable, but rather should keep off of all things involving politics that may influence their personal views and just ‘judge’.
In Oloka’s viewpoint, the tension within the three arms of the government is evident in Public Interest Litigation (PIL) because of the effects it has on such as locus standi, the Political Question Doctrine, and in response to living realities.[12] Whereas in locus standi and the Political Question Doctrine set out the foundations upon which Oloka’s authorship is based. The living realities furthur magnify the often-neglected yet critical concerns of PIL in action.
Therefore, constitutional supremacy is highlighted as one of the key goals of PIL which entails three aspects.[13] First, all organs of the state are bound by the Constitution. Second, the relationship among the organs of government is characterised by a system of checks and balances which could inadvertently create uncertainty and tension. Lastly, the judiciary has oversight of the exercise of state power specifically through judicial review as laid down in the constitution.[14] Oloka further points out that the third power is inherently a political activity that forces members of the bench to decide what side of the divide in which they fall on.
Locus Standi: A right to justice?
Apparently, the East African courts will only take a view of a case if it is undoubtedly proven to have a direct special or peculiar link with the dispute that merits the case. Conversely, more than perfect persuasive skills or ‘flowery language’ are needed to prove that a citizen has a special interest or connection with a public interest matter.[15] Thus, Oloka describes how the court dismissed PIL related cases based on this procedural technicality within its consideration.[16] He explains that locus standi is prominent because of the three theories that underpin it and the proximity of a litigant to the dispute thus excluding the unconcerned third parties. This prevents the abuse of court process through vexatious suits and maintain that individuals are mindful of the courts’ resources.
In line with Oloka’s trail of thought, this depicts locus standi as a tool of imperialism rooted in the English crown. The crown took advantage of the procedural legal hurdles created by the right of standing. By vesting itself with personal ownership of the courts which later evolved into a writ system of adjudication where no negotiation was permitted or simply justice became a facade.[17] Additionally, access to courts became quite unattainable since the judicial systems were mainly based on qualifications such as class gender, and property holdings.[18] Gradually, locus standi morphed its way into a tyranny of the few with its attendant sovereign immunity from court proceedings furnishing governments unrestrained power to act with impunity.
Additionally, Oloka describes how the tool of imperialism was carried down to English colonies which saw it as a blunt disregard for African judicial systems. The colonial systems thus rendered the African judicial systems as inferior negating the pluralistic character of customary law by moulding them into a single static unit for effective colonial governance.
This matches with the view that customary law remained undeveloped to pave the way for the emergence of common law. He further writes that even when most East African countries had written constitutions, their judgments reflected parliamentary supremacy. Moreso, the subordination of judicial power to reflect the two arms of the government and the whims of the ruling party.[19] Henceforth, unsolicited judicial restraint became the primary method of adjudication. This therefore led to judicial relaxation of locus standi rule and constitutional reforms in the three countries (Kenya, Uganda, and Tanzania) which culminated with the redefining of the public interest to signify transformative constitutionalism that we now majorly experience as a nation.
Conclusion
So, where does this leave us? From the anthology laid out before ‘judicialization’ is not just a sudden intervention of courts into politics. As Oloka-Onyango shows, courts have long been part of the political landscape through the rules they enforce. Public Interest Litigation, the evolution of locus standi, and constitutional reforms all reveal that the judiciary cannot escape politics; it has always been shaping who wins and who loses. Understanding judicialization, then, is really about recognizing the continuous presence of courts in political life.
[1] Vallinder Torbjoin, ‘The judicialization of politics—A world-wide phenomenon: introduction’, 15(2) International Political Science Review (1994) 91.
[2] Torbjoin, ‘The judicialization of politics—A world-wide phenomenon: introduction’, 91-92.
[3] Oloka-Onyango J, When courts do politics: Public interest law and litigation in East Africa, Cambridge Scholars Publishing, Newcastle, 2017, 4.
[4] Oloka-Onyango J, When courts do politics, 3.
[5] Gabriel Eidelwein Silveira, Denise Regina Quaresma da Silva, Paulo José Libardoni and Tamires Eidelwein, ‘Judicial marxism: A sociological essay on ideology in Brazilian Courts’, 8(4) International Journal for Innovation Education and Research (2020) 529-530.
[6] See the case on Switzerland on election of Judges. See also Kenya’s Judicial Service Commission’s YouTube Channel which has hosted a variety of interesting interviews for the positions of Judges.
[7] Oloka-Onyango J, When courts do politics, 4.
[8] Oloka-Onyango J, When courts do politics, 4.
[9] Theodora Peter, ‘Independence of the judiciary under scrutiny’, Swiss Community https://www.swisscommunity.org/en/news-media/swiss-revue/article/independence-of-the-judiciary-under-scrutiny , 30.09.21.
[10] Ford Foundation, ‘Ford Foundation staff member Willy Mutunga appointed chief justice of Kenya’, 15 June 2011.
[11] Oloka-Onyango J, When courts do politics, 5.
[12] Oloka-Onyango J, When courts do politics, 101.
[13] Oloka-Onyango J, When courts do politics, 7-8
[14] Oloka-Onyango J, When courts do politics, 27.
[15] Oloka-Onyango J, When courts do politics, 26-29.
[16] Oloka-Onyango J, When courts do politics, 27.
[17] Oloka-Onyango J, When courts do politics, 29.
[18] Oloka-Onyango J, When courts do politics, 29.
[19] Oloka-Onyango J, When courts do politics, 30.
