Independence of the Judiciary at International Level: The Case of the East African Court of Justice
Zanzibar Yearbook of Law (2014) Volume 4
25 Pages Posted: 15 May 2016
Date Written: 2014
icial independence is one of the fundamental elements of a successful constitutional democracy. A successful constitutional democracy cannot be achieved if judicial independence is undermined. Establishing and preserving judicial independence is the objective of both national and international initiatives. With the proliferation of International Courts (ICs) across the world, advocacy for their independence has gradually increased. It is said that the principles used to codifying the independence of ICs are more or less the same as those found in national constitutions. It is commonly, but not universally, accepted that judicial independence is one of the attributes of an effective international judiciary. Therefore, there is a close link between judicial independence and the effectiveness of a court. The more dependent a court is, the more ineffective it is likely to be. It is easy to contrast the functioning of domestic courts in a democratic state with the functioning of courts in undemocratic states. Independent national courts mostly function in a successful market-based liberal democracy, whereas dependent national courts operate under authoritarian regimes and failed democracies. If when discharging its functions a court is influenced by political actors, such a court is likely to be regarded as a political tool and will tarnish its image. It is the duty of political actors to establish courts that are free from political influence. ICs will be effective if regular politics do not determine how they interpret and apply laws. Therefore, as with domestic courts, the integrity of ICs rests on how much independent they are. In order to maintain their independence, ICs must operate in an environment where there is no interference from external forces. The EAC Treaty attempts to guarantee the independence of EACJ judges. However, the Treaty makes no mention of the EACJ’s independence status. Rather, it requires the process of appointing its judges to take into consideration the proven integrity, impartiality and independence of candidates. The EAC’s political organs have much control over the functioning of the EACJ. The security of tenure of the judges became a subject of debate after the member states made amendments to the EAC Treaty in 2007, following the Court’s interim ruling on the case of Anyang’ Nyong’o and Others v Attorney General of Kenya, that introduced suspicious grounds for the removal and suspension of the Court judges. Like other courts, the EACJ must be independent and impartial in order to for it to function effectively. An independent and impartial EACJ would contribute enormously to the building of a democratic culture in the East African Community (EAC) and to the upholding of the EAC’s norms.
Keywords: East African Court of Justice, International courts and tribunals, international judiciaries, judicial independence
JEL Classification: K33
Suggested Citation: Suggested Citation