Who Cares about Courts? Creating a Constituency for Judicial Independence in Africa

Abstract:     
At a time when many American legal scholars are turning away from courts, stressing the development of legal norms outside of the judiciary, Jennifer Widner offers us a contrasting perspective on the centrality of courts to democracy in her powerful history of the role of courts and judicial review in democratization in Africa, Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa (Norton & Company, Inc., 2001). As this review essay illustrates, Widner focuses on the role of one judge, a man who would see himself as embodying the role in Tanzania that Chief Justice John Marshall had played in the United States. As he worked to carve out a role for courts in the politics of Tanzania, Francis Nyalali focused especially on the importance of public support for the courts, on creating a constituency for judicial review. Creating a public that cared about courts, was, for Nyalali, an essential component of democratic government. Faced with an attack on judicial autonomy early in his tenure as Chief Justice of the High Court of Tanzania, Nyalali confronted a dilemma that has troubled other judges in other regimes. What should a judge do when he finds himself presiding in a system that is itself unjust? Is it best to resign so as not to confer legitimacy on an illegitimate system? Or is it better to stay on, and to ameliorate the system's faults to the extent he can? Nyalali chose instead a third path. He took his case to the political process, and worked to generate a constituency for judicial review in Tanzania. In this way, Widner's study illuminates a general point about courts and judges as strategic political actors. In this story the focus of strategic politics is not a particular external agenda; the objective instead is to create a political space for courts and judicial review. The notion of courts reaching out to the public runs directly contrary to some American perspectives on the judicial role. However, this essay argues, Widner helps us to see the way public opinion plays a role in judicial development, at least for courts at a comparatively early stage in institutional development. This history helps us to take seriously the question of whether a public constituency should be very much on the agenda of courts interested in maintaining their own legitimacy.

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