Reworking strategic models of executive-judicial relations: Insights from new African democracies

Comparative Politics

Volumn 43, Issue 2, 2011, Pages 147-165

  VonDoepp, Peter ^a   Ellett, Rachel ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79951652651     PISSN: 00104159     EISSN: None     Source Type: Journal    
DOI: 10.5129/001041511793931843     Document Type: Article

References (66)

1. In addition to works cited in the body, key contributions include Tom Ginsburg and Tamir Moustafa, eds., Rule by Law: The Politics of Courts in Authoritarian Regimes (New York: Cambridge University Press, 2008);
2. Gretchen Helmke, Courts Under Constraints: Judges, Generals and Presidents in Argentina (New York: Cambridge University Press, 2005);
3. Lisa Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (New York: Cambridge University Press, 2007);
4. Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (New York: Cambridge University Press, 2007).
5. The notion of "thin" strategic models borrows from Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004).
6. The review that follows draws from Peter VonDoepp, Judicial Politics in New Democracies: Cases from Southern Africa (Boulder, CO: Lynne Rienner Publishers 2009), 20-24.
7. Mark Ramseyer, "The Puzzling (In)dependence of the Courts: A Comparative Approach," Journal of Legal Studies, 23 (June 1994), 721-48.
8. Rebecca Bill Chavez, "The Construction of the Rule of Law in Argentina: A Tale of Two Provinces," Comparative Politics, 35 (July 2003), 417-37;
9. see also Rebecca Bill Chavez, The Rule of Law in Nascent Democracies: Judicial Politics in Argentina (Palo Alto, CA: Stanford University Press, 2004).
10. For related arguments on the ways that party systems and electoral uncertainty shape the development of judiciaries, see Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (New York: Cambridge University Press, 2003), 22-27 and 77-89;
11. and Pedro C. Magalhães, "The Politics of Judicial Reform in Eastern Europe," Comparative Politics, 32 (October 1999), 43-62.
12. See, for example, Jeffrey K. Staton, "Judicial Policy Implementation in Mexico City and Merida," Comparative Politics, 37 (October 2004), 41-60;
13. Georg Vanberg, "Establishing Judicial Independence in West Germany: The Impact of Opinion Leadership and the Separation of Powers," Comparative Politics, 32 (April 2000), 333-53;
14. Keith Whittington, "Legislative Sanctions and the Strategic Environment of Judicial Review," I-CON International Journal of Constitutional Law, 1 (2003), 446-74;
15. Jennifer Widner, Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa (New York: W.W. Norton, 2001), especially 30-40.
16. C. Neil Tate, "Courts and Crisis Regimes: A Theory Sketch with Asian Case Studies," Political Research Quarterly, 46 (June 1993), 311-38.
17. Christopher Larkins, "The Judiciary and Delegative Democracy in Argentina," Comparative Politics, 30 (July 1998), 423-43.
18. See, especially, Pilar Domingo, "Judicialization of Politics or Politicization of the Judiciary: Recent Trends in Latin America," Democratization, 11 (February 2004), 111.
19. See Hirschl, Towards Juristocracy, 44. His work incorporates some discussion of judicial preferences when analyzing decisions to create formal provisions for judicial review.
20. See Whittington, "Legislative Sanctions," 464, on this point.
21. This framework is elaborated in VonDoepp, Judicial Politics in New Democracies, 24-37 and 158-64.
22. Robert Jackson and Carl Rosberg, Personal Rule in Black Africa (Berkeley: University of California Press, 1982), 58;
23. William Reno, Warlord Politics in African States (Boulder, CO: Lynne Rienner Publishers), 19.
24. See Richard Sandbrook, The Politics of Africa's Economic Stagnation (New York: Cambridge University Press, 1985), 83-111.
25. See, for example, Whittington, "Legislative Sanctions," 451;
26. and Hirschl, Towards Juristocracy, 44.
27. This extends on the instrument used in VonDoepp, Judicial Politics in New Democracies, 156.
28. For examples, see Peter Russell, "Toward a General Theory of Judicial Independence," in Peter Russell and David O Brien, eds., Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (Charlottesville: University Press of Virginia, 2001 ), 1-24;
29. and Tate, "Courts and Crisis Regimes," 317-19.
30. See Bill Chavez, Rule of Law, 26;
31. Russell, "Judicial Independence," 14-19.
32. Ibid.
33. Russell, "Judicial Independence," 21.
34. See Russell's discussion of "direct approaches," ibid., 20-21.
35. For a discussion of corruption in judiciaries see Michael Dodson and Donald Jackson, "Horizontal Accountability in Transitional Democracies: The Human Rights Ombudsman in El Salvador and Guatemala," Latin American Politics and Society, 46 (Winter 2004), 1-27;
36. or Transparency International, Global Corruption Report 2007:
37. Corruption in Judicial Systems (New York: Cambridge University Press, 2007).
38. See Aili Tripp, "The Changing Face of Authoritarianism in Africa: The Case of Uganda," Africa Today, 50 (Spring 2004), 2-26;
39. or Freedom House, Freedom in the World 2007 (Lanham, MD: Rowman and Littlefield, 2007), 835-39.
40. Although one reviewer suggested employing an expanded scale to capture more instances of interference within the cases, we have resisted this advice for two reasons. First, we found that employing a 0-3 scale, as opposed to a 0-2 scale, did not alter the ordinal rankings of the administrations as depicted in Table 1. Second, using such an expanded scale exaggerates the importance of rhetorical attacks on the courts and its personnel, while decreasing the relative importance of issues like personal linkages or patronage. Virtually all of the overall interference score increases that resulted from using a 0-3 scale were attributed to increases from "2" to "3" on the scoring for such rhetorical types of interference.
41. https://sites.google.eom/a/beloit.edu/rachel-elleft-phd/home/data.
42. Detailed descriptions of our justifications for the specific designations for each administration can be obtained at https://sites.google.eom/a/beloit. edu/rachel-ellett-phd/home/data.
43. See Transparency International's, Corruption Perception Index, available at http://www.transparency. org/policy-research/surveys-indices/cpi.
44. Sandbrook, Africa's Economic Stagnation, 92.
45. Out of office, corruption allegations have dogged the former president. See "Now CCM 'protects' Mkapa, Censures Sitta", This Day, August 24, 2009. Available at http://www.thisday.co.tz/News/6205.html.
46. Our Tanzanian expert reviewer emphasized the dependence of the judiciary on the executive and legislature for finances and operational resources.
47. Interviewees signaled that such delays acted as a deterrent to the filing of cases. Author interviews with law professors and High Court/Court of Appeal Judges, Dar es Salaam, Tanzania, June 2007. Also see, Helen Kijo Bisimba and Chris Maina Peter, eds., Justice and Rule of Law in Tanzania: Selected Judgements and Writings of Justice James L Mwalusanya and Commentaries (Dar es Salaam, Tanzania: Legal and Human Rights Center, 2007), 33-35.
48. Author interview with UNDP official, Dar es Salaam, Tanzania, June 2007.
49. Sec especially Widner, Rule of Law, 191-95 and 307-10.
50. Attorney General v. Rev Christopher Mtikila (1998) TLR 100.
51. Ndyanabo v Attorney General [2001] 2 EA 485; [2001] LLR 18 (CAT).
52. Peter VonDoepp, "Context-Sensitive Inquiry in Comparative Judicial Research: Lessons from the Namibian Judiciary," Comparative Political Studies, 41 (2008), 1515-540.
53. Author interview with Namibian judge, Windhoek, Namibia, May 2006.
54. Author interview with former cabinet member, Lusaka, Zambia, June 2006.
55. The Post (Lusaka, Zambia), April 8, 1998, and April 22, 1998; these were later proven false.
56. See Peter VonDoepp, "The Problem of Judicial Control in Africa's Neopatrimonial Democracies: Malawi and Zambia," Political Science Quarterly, 120 (Summer 2005), 275-301;
57. or Davies Chikalanga, Goodwell Lungu and Ngoza Yezi, "Zambian Judiciary Struggles to Modernize," in Transparency International, Global Corruption Report 2007, Corruption in Judicial Systems (New York: Cambridge University Press, 2007), 287-90.
58. For a review of such cases, see Peter VonDoepp, Judicial Politics in New Democracies, 72.
59. The Post (Lusaka, Zambia), February 9, 2003.
60. Ambokile Salimu, "A note on the judiciary," The Nation (Blantyre, Malawi), September 3, 1997.
61. Consumer Association of Malawi, "Study of the Distribution, Pricing and Consumption of Sugar in Malawi," Sept-Dec, 1997. Mimeo.
62. The foundational case here for the Ugandan Supreme Court was Attorney General v Major General David Tinyefuza, Supreme Court Constitutional Appeal No. 1 of 1997 from Constitutional Petition No. 1 of 1996.
63. The Supreme Court ultimately modified the constitutional court judgment. Ruling that although the Referendum Act was unconstitutional, the Referendum itself should stand; in short, acknowledging the unconstitutional behavior of government without destabilizing the political system and country.
64. Cited in "Museveni Mad with Judges over nullifying 2000 referendum," The Monitor (Kampala, Uganda), June 30, 2004.
65. I Ssuuna, "Judges Favour Ssemo, Says Museveni," The Monitor (Kampala, Uganda), June 30, 2004.
66. Rodney Muhumuza and Gerald Bareebe, "Audit Court Rulings - Museveni," Daily Monitor, January 26, 2009.