Judicial Politics in New Democracies: Cases from Southern Africa 9781626371095

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Judicial Politics in New Democracies

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CHALLENGE AND CHANGE IN AFRICAN POLITICS SERIES EDITOR John W. Harbeson, City University of New York EDITORIAL BOARD Gretchen Bauer, University of Delaware Catherine Boone, University of Texas Gilbert Khadiagala, University of Witwatersrand Stephen Ndegwa, College of William and Mary Michael Schatzberg, University of Wisconsin–Madison Aili Mari Tripp, University of Wisconsin–Madison Nicolas van de Walle, Michigan State University Leonardo A. Villalón, University of Florida

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Judicial Politics in

New Democracies Cases from Southern Africa

Peter VonDoepp

b o u l d e r l o n d o n

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Published in the United States of America in 2009 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU  2009 by Lynne Rienner Publishers, Inc. All rights reserved Library of Congress Cataloging-in-Publication Data VonDoepp, Peter, 1967– Judicial politics in new democracies : cases from southern Africa / Peter VonDoepp. p. cm. — (Challenge and Change in African Politics) Includes bibliographical references and index. ISBN 978-1-58826-657-6 (hardcover : alk. paper) 1. Justice, Administration of—Africa, Southern. I. Title. KQC457.V66 2009 347.68—dc22 2009009738 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library. Printed and bound in the United States of America The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5 4 3 2 1

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To Alfred Chanda, scholar, activist, and mentor

In memoriam

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Contents

List of Tables Acknowledgments 1 2 3 4

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Democracy and Judicial Autonomy: Investigating the Southern African Cases

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Understanding Government Choices: Judicial Politics in Theoretical Perspective

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Neopatrimonial Politics and the Intimidation of the Courts in Zambia

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Informal Ties, Threats, and the Problem of Judicial Control in Malawi

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Party Dominance and Judicial Autonomy in Namibia

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Insights from the Southern African Cases

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References Index About the Book

169 179 185

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Tables

3.1 3.2 3.3 3.4 4.1 5.1 6.1 6.2 6.3 6.4

Zambia High Court Decisions, 1992–1995, by Presidential Involvement in Case Zambia High Court Decisions, 1992–1995, by Opposition Involvement in Case Zambia Supreme Court Decisions in Political Cases, 1992–1995 Zambia Supreme Court Decisions, January 1997–May 2001 Malawi Supreme Court Decisions in Political Cases, May 1994–May 1999 Namibia Supreme Court Decisions, 1990–2005, by Level of Government Interest in Case Interference with the Judiciary Under Different Administrations Thin Models vs. Patterns of Interference Judicial Threat Levels Under Different Administrations Judicial Threat Levels, Neopatrimonialism, and Government Interference

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53 53 54 64 91 135 156 157 162 163

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Acknowledgments

The idea for this project originated during a 2000 visit to Malawi. Conducting research on democratic consolidation in the country, I came to appreciate the important role of judicial institutions in helping to stabilize elite interactions and even enable the survival of democracy itself. From that initial observation, I developed a broader interest in the comparative development of judicial institutions in new democracies. In particular, I wanted to understand the conditions and factors that shape the course of judicial development and the role that these institutions take in political systems. Over the next six years, I conducted fieldwork in three African countries—Malawi, Zambia, and Namibia—exploring this general theme. Centered on the experiences of judiciaries in those three countries, I explore in this book why judiciaries enjoy substantial levels of autonomy in some contexts, while in others they do not. Given the span of time between the project’s inception and completion, there are many individuals and institutions deserving of thanks for helping along the way. In my comments below, I attempt to acknowledge many of these, accepting that this is in no way an exhaustive list of those who helped make this project possible. Institutional and financial support for the project has come from a variety of sources. Much of the support for the initial fieldwork came from the University of North Texas (UNT), where I was a faculty member from 2001 to 2005. I must also thank my former colleagues in UNT’s Department of Political Science, who provided input on the project in its preliminary stages. I single out especially C. Neal Tate. Research assistance at UNT was provided by Martin Wilhoite and Brian Calfano. The final and most intensive period of fieldwork in 2006 was supported by a US Department of Education Fulbright-Hays Faculty Research Abroad Fellowship. My new

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Acknowledgments

home institution, the University of Vermont, generously granted me leave from teaching responsibilities so that I might undertake this research. During my research in Namibia, I was affiliated with the Institute for Public Policy Research in Windhoek, which graciously supported my research activities and provided a forum for intellectual interchange. In this respect I owe special thanks to Christiaan Keulder, Daniel Motinga, and Bill Lindeke. I also received generous assistance in Windhoek from the Legal Assistance Centre (LAC), which allowed me use of its library. For this, I offer my thanks to the LAC and its director, Norman Tjombe. I am also grateful to members of the US Embassy Public Affairs Division in Windhoek for their help with logistical matters. The Zambia portions of the research, conducted in 2002, 2004, and 2006, would not have been possible without my affiliation with the University of Zambia through the School of Law. Primary research assistance in Zambia was provided by Regina Boma and Angela Kafunda. I was aided on the logistical side by Betty Nalungwe of the US Embassy Public Affairs Division. Most of all, I must acknowledge the immense assistance and guidance provided by my friend and mentor, the late Alfred Chanda, who connected me with research assistants, provided logistical support, shared his data, and, most importantly, offered intellectual input. Without his support, I doubt that much of my work in Zambia would have been fruitful. Alfred served as a faculty member and dean of the Law School at the University of Zambia and was an acclaimed activist and spokesperson for human rights and better governance in his country. Sadly, he died in a car accident in December 2006, months after I returned from the final stages of fieldwork. During the initial stages of fieldwork in Malawi, I received assistance from Edge Kanyongolo of Chancellor College, the University of Malawi. During my last stay in the country, in 2006, I benefited greatly from the assistance of the US Embassy Public Affairs Division. Research aid was provided by Phoebe Chikungwa, Cecil Tengatenga, Susan Tengatenga, and Isaac Kadyakale. As always, the support from the entire Tengatenga family helped to sustain me during my stay in the country. I also must thank several individuals who read and commented on earlier portions of this work. These include Dunia Prince Zongwe, Robert Gordon, Muna Ndulo, and Rachel Ellett. I also received helpful commentary in conference settings from Catherine Boone and Bruce Magnusson, and from the participants in the Cornell University Institute for African Development annual seminar series, where I presented some of my central findings. There are, of course, a number of individuals who have provided both conceptual and substantive help, but who cannot be openly thanked. These include interviewees whose identities have been kept confidential, as well

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Acknowledgments

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as some individuals who read earlier portions of the manuscript but for a variety of reasons must also remain anonymous. I offer my heartfelt thanks to these persons for all of their invaluable contributions to this work. I owe a special thanks to Lynne Rienner for taking an interest in the project and helping to see it through to completion. Her staff has also been immensely helpful in this respect. My family has joined me in cross-continental travel and endured my absences during some portions of the fieldwork and writing phases. More importantly, they have tolerated, tempered, and helped me to keep in perspective the frustrations that I have carried home with me as I have worked on this project. For this I thank my wife, Christina, daughter, Sarah, and son, Asher.

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1 Democracy and Judicial Autonomy: Investigating the Southern African Cases

It requires neither enormous reading nor deep reflection to understand the importance of judicial institutions for new and emerging democracies. Much as democracy is associated with electoral contestation and universal rights to suffrage, its operation depends substantially on constitutionalism and the rule of law. Vibrant and autonomous judiciaries are central means to these ends. By virtue of their potential to help check governmental abuses of power and uphold individual rights, they represent key ingredients for democratic consolidation. This book examines judicial politics in three of southern Africa’s new democracies: Malawi, Zambia, and Namibia. My primary focus concerns the extent to which judiciaries in these countries have maintained some level of autonomy within their political systems. Autonomous judicial institutions generally witness limited interference from political actors and can exercise their authority without fear of retribution from them. Whereas judiciaries in some contexts enjoy such situations, in others they become targets of manipulation as powerholders attempt to influence their operations or undermine their authority. My goal in this book is to explore whether leaders in these new democracies have respected or undermined judicial autonomy, understand the reasons they have behaved as they have, and examine how judiciaries have responded in light of such actions by other powerholders. In focusing primarily on the actions of leaders toward the courts, I operate from a perspective that sees judicial development as shaped largely, though not exclusively, by the choices of powerholders in the legislative and executive branches. This does not mean that I consider judicial officers unimportant to such development. It merely reflects the view that the power and status of judiciaries rests on political foundations. The political considerations of other actors with respect to the judiciary significantly condition the extent of autonomy

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the institution enjoys. The central task is to illuminate why key powerholders have behaved as they have toward the courts. As will become evident, the experiences of judiciaries in these three southern African countries have varied. Both among these countries and within them, over time, powerholders have taken different approaches to these institutions. In some contexts, leaders have allowed judiciaries to operate relatively unimpeded; in others, they have attempted to openly interfere with the bench; while in others they have sought to manipulate the judiciary via more subtle and clandestine means. Judicial behavior—in particular the extent to which judges have challenged the interests of the executive in their rulings— has similarly varied, partially as a reflection of these different approaches. In accounting for the variations in the choices and actions of leaders, I draw from, but also seek to add to, a leading theoretical framework in the study of judicial politics labeled the strategic approach. Consistent with this approach, I maintain that leaders’ approaches and actions toward the courts have reflected strategic calculations about the utility of those institutions as well as the specific capabilities leaders possess with respect to them. Also consistent with this approach, I maintain that these calculations and capabilities are informed by political realities and factors. However, the southern African cases offer reformulations of this framework in two key ways. First, they highlight the limitations of the predominant view, associated with “thin” strategic models, that leaders’ choices are shaped principally by the nature of the electoral market and party system in which they are situated. In situations of dispersed political power and high levels of electoral uncertainty, leaders are understood to have incentives to respect and foster judicial autonomy. Conversely, where power is concentrated and electoral uncertainty low, leaders are believed to have both the incentives and the means to corral those institutions. As the southern African cases vary in terms of such objective political conditions, the investigation here enables specific comparative tests of these propositions. As will be seen, the experiences of the courts in the southern African cases only poorly correspond to such expectations. Patterns within the electoral market and party system do not account for the character and style of government interference with judiciaries in these societies. Second, in light of the shortcomings of such approaches, the southern African cases bring attention to other types of factors that deserve attention when seeking to account for government choices with respect to the judiciary. Three stand out as important. The first concerns the extent to which political questions have been effectively “judicialized.” The cases indicate that where the courts obtain a central role in deciding political issues, they are more likely to witness interference from political actors affected by their decisions in cases. The second factor involves the actions of judges and how their behav-

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ior affects the kind of interventions the judiciary encounters at the hands of political leaders. Of special importance are the kinds of signals that judges send to government about their willingness to interfere with executive priorities. In the countries examined, government interference with the bench has been more typical when the courts have signaled a propensity to undermine the interests of the executive. This is especially true where such signaling has been combined with high levels of judicialization. Finally, the case studies suggest that the nature of the larger political system informs the experience of the judiciary. Of special importance is the extent to which leaders are situated in environments characterized by state weakness and neopatrimonial tendencies. Leaders in such contexts face distinct and powerful incentives to interfere with the courts. Yet their ability to manipulate the courts in a manner similar to leaders in other contexts is limited. As a result, they tend to intervene in the courts in determined, but nonetheless unique, ways that are suited to the peculiarities of their political environment. The southern Africa cases thus present key challenges for existing frameworks and important lessons about the factors and conditions affecting judicial development in new democracies. As judiciaries are a centrally important, but understudied, element of democratic rule, such insights deserve consideration from those concerned with the fate of emerging African democracies, as well as those interested in comparative judicial politics more generally.

Democracy, the Rule of Law, and Judiciaries in Africa The 1990s witnessed dramatic changes in the political landscape of Africa. Whereas the previous three decades had been characterized by various forms of authoritarian rule, by the middle of the 1990s many African countries were formally experimenting with democratic forms of governance. To be sure, as Michael Bratton and Nicolas van de Walle demonstrate, some of these democratic experiments were more far-reaching than others (1997: 120). Nonetheless, full-fledged democratic experiments were underway in a sizeable number of African countries, representing a definitive democratic trend on a continent long considered hostile to such forms of rule. The onset of democratic rule in many African countries brought new significance to judicial institutions, in both theoretical and practical terms. At a practical level, some processes of political transition brought court institutions directly into the political arena, as judges were forced to adjudicate disputes between democratic movements and the incumbents they sought to replace. The cases of Zambia and Malawi discussed in this book provide examples. Beyond this, many of the political transitions of the early 1990s entailed not only returns to democracy, but also efforts to reestablish constitutional governance

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and the rule of law. This often took the specific form of pressing for and sometimes negotiating constitutional changes that decreased executive powers and increased civil liberties and rights. Such returns to constitutionalism—both in spirit and in reality—necessarily catapulted judicial institutions to more prominent roles than they had occupied under single party and other types of authoritarian regimes.1 Posttransition disputes concerning inter-branch relations, the scope of executive authority, and the precise meaning of civil liberties found their way into the courts, rendering them far more significant players in the political process than they had been in previous eras. Just as judiciaries were playing a more prominent role on the ground in African democracies, so too did they begin to occupy a more substantial place in the literature concerned with democracy and patterns of regime development. As attention turned away from the dynamics of transition to issues of democratic consolidation and survival, scholars increasingly focused on the importance of the rule of law as a necessary accompaniment to democratic rule (see Carothers 1998; Linz and Stepan 1996; and Bill-Chavez 2004). Much of this was prompted by a need to correct the excessive emphasis placed on elections as the essential institution of democracy, at the expense of attention to other key issues. While elections were important, many argued, without the rule of law or a Rechtsstaat wherein government actions were guided by codified laws, corruption, clientelism, and abuses of power would undermine democracy (Diamond 1999: 111). Judiciaries were never far removed from such discussions as they represented the central mechanism through which the rule of law could be enforced. The experiences of new democracies have further illuminated the importance of judiciaries. By the mid-to-late 1990s the inadequacies and shortcomings of many erstwhile democratic regimes were all too apparent. Rather than “consolidation,” posttransition experiences were increasingly characterized by the emergence of hollow democracies and/or hybrid regimes. These included “illiberal democracies” that failed to protect the basic rights and liberties of citizens; “delegative democracies” that concentrated power in the hands of single executives who could rule unencumbered by other institutions; or “competitive authoritarian” regimes wherein authoritarian incumbents retained power while maintaining the facade of democratic and constitutional governance.2 These regimes were very unlikely to perform in a manner that cultivated legitimacy for democracy. Perhaps more importantly, they were quite susceptible to gradual authoritarian reversals or “slow death” at the hands of incumbents seeking to maintain their positions of power and privilege.3 Such tendencies have been quite apparent in many of Africa’s new democracies. Presidential dominance of the political order has remained a central feature of political life (van de Walle 2002: 69) and long-standing tradi-

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tions of patrimonial and big-man politics seem to bode poorly for undoing such patterns (Schatzberg 2001). Although democratic rights and civil liberties obtained new emphasis in political and social discourses on the ground (Gyimah-Boadi 1999), governments remained willing to curtail those rights and liberties, as seen in attacks on the free press that occurred early on in some new democracies.4 And manipulation of electoral processes by incumbents in several countries has undermined both the reality and legitimacy of democratic rule.5 Much as judiciaries are central to the development of the rule of law at an abstract level, they also embody mechanisms to deal with these kinds of tangible problems in democratic development. Judiciaries have the potential to serve as a, if not the, key mechanism of horizontal accountability. To the extent that they maintain some level of independence, they can temper some of the excessive presidentialism that undermines liberal democracy and contributes to the emergence of hybrid regimes. This is most apparent when they restrain executive behavior ensuring that the exercise of authority remains within the bounds of the law. They can also play important roles in solidifying individual rights vis-à-vis the state. This includes upholding citizens’ rights to association, free expression and due process, as well as rights against unlawful detention or loss of property at the hands of the state. As Diamond and Domingo argue, judicial activities in this regard are especially important in cultivating legitimacy for democratic orders (Diamond 1999: 47; Domingo 1999: 153). Many observers in Africa have, of course, recognized this and highlighted the important role that judiciaries need to play in cultivating “rights cultures” within political systems.6 That judiciaries have had highly constructive roles to play in Africa’s new democracies seems obvious enough. Whether they can play such roles in promoting accountability, civil rights, and the rule of law more generally is, of course, an entirely different issue. In some respects, the situation in these new democracies would seem to bode well for judicial authority. Constitutions have obtained new prominence and judicial authority and independence are often enshrined in those documents.7 Moreover, international norms and tendencies have also elevated the place and status of judicial institutions (Epp 1998). At the same time, judiciaries need to enjoy some level of autonomy if they are going to effectively play these roles. That is, they need to operate in an environment where their authority is respected and they remain relatively free from gross interference. The problem is that judiciaries face inherent weaknesses and represent likely targets of manipulation and subversion at the hands of other political actors. They lack the majoritarian mandates and key resources enjoyed by executives and legislatures. Moreover, they necessarily represent a threat to powerholders in those branches as they can interfere with

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policy initiatives and political goals. For these reasons, assaults on judicial autonomy and authority are likely. This would seem especially so in African contexts where the rule of law has traditionally been weak in the face of personal rule and patrimonial governance that elevates the status and power of individual leaders over and above institutions. While the need for autonomous judiciaries is thus high in new African democracies, the emergence of such institutions faces real challenges.

Questions, Cases, and Methods My primary goal in this book is to illuminate and explain why governments in Malawi, Zambia, and Namibia have taken the paths they have with judicial institutions. That is, how do we account for the varied experiences of judiciaries in terms of the extent and type of interventions they have faced at the hands of powerholders? At a secondary level, I explore how judiciaries have responded, behaviorally, in the context of such interventions. Yet the primary task is to highlight whether and how judicial autonomy has been undermined and to account for the varied paths observed in these three southern African democracies. In so doing, the book aims to investigate existing approaches to the study of judicial politics and offer new insights about factors and conditions affecting the course of judicial development in new democracies. By design, the analysis in this book undertakes this task through caseintensive comparative techniques. I examine and compare patterns of government behavior with respect to the courts among these countries, and within them over time, toward the end of discerning the key factors and conditions that account for the experiences of judiciaries. In certain key respects, the cases chosen for this study were well suited to this objective. On one level, these three countries are relatively similar in certain general respects, allowing for some level of “control” over factors that might shape judicial development. All three of these countries emerged as new democracies in the early 1990s, and all have faced the challenges of consolidating the rule of law, solidifying individual rights, and promoting horizontal accountability that are common to many new democracies. Beyond this, all three countries have operated under English “common law,” in contrast to a “civil law,” framework.8 In principle, this means that judges are afforded greater latitude in “making law” (Widner 2001: 77–78), although some have questioned whether the distinction is that critical in practice today (Domingo 2004: 106). Finally, in all three countries, basic institutional structures of the courts are the same. Supreme courts, constituting the top rung of the judicial ladder, represent final courts of appeal. Beneath these are high courts, where most political cases originate in these

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countries.9 These two top levels of the judicial system, the supreme and high courts, represent the central foci of this study. Yet there are important differences operating as well, some that could affect the experiences of courts at the hands of powerholders in these countries. Drawing from existing theory, several of these differences were hypothesized in the original design of the study to do just that. Certain others emerged as relevant in the course of the actual research and analysis. For one, different political legacies characterize these countries. Namibia emerged as a newly independent democratic country in 1990 from colonial and apartheid rule, during which the judiciary, although part of that system, enjoyed a level of autonomy that allowed it to check some of the abuses of the government. Zambia’s prior regime entailed the relatively soft authoritarianism of Kenneth Kaunda’s single-party system. Although the judiciary was subservient to the party and the president, it nonetheless retained substantial authority and at times tempered the excesses of the regime, especially with regard to infringements of individual rights. Finally, Malawi’s new democracy carried the baggage of a brutal authoritarian system overseen by President for Life Kamuzu Banda. Prior to 1993, dissent and political pluralism were ruthlessly repressed and the courts, while retaining high levels of probity and competence, were removed from any meaningful role in the political system. In addition, these countries have varied with respect to the nature of the party system and electoral uncertainty operating during the democratic era. As indicated, leading theoretical frameworks, most notably those associated with what are termed thin strategic models, view such factors as determinative in shaping executive choices with respect to the courts.10 Namibia has witnessed single-party dominance, under the highly disciplined South West Africa People’s Organization (SWAPO) party, and been characterized by low levels of uncertainty. Zambia was characterized by the initial dominance of a single undisciplined party that subsequently fractured, contributing to reasonably high levels of uncertainty within the country’s electoral politics. Malawi has represented the most dramatic case of power dispersion in the party system and degree of electoral uncertainty. No single party has ever had more than 65 percent of legislative seats, divided government has been relatively frequent, and elections have been highly competitive between different candidates. Finally, these countries have varied in terms of state strength and the degree to which neopatrimonial tendencies have manifested themselves. Malawi and Zambia have represented classic weak states that have been highly donor dependent and lacking in organizational capacity. Moreover, both have exhibited neopatrimonial tendencies in the democratic era. Big men have remained at the center of political life, while institutions have been secondary. Corruption has been more apparent and clientelism has remained

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a prime basis of political loyalties. And leaders have operated in insecure situations in contexts of palace intrigue and threats to their tenure in office. By contrast, Namibia represents one of the stronger states in Africa in terms of capacity and legitimacy. And while certain neopatrimonial tendencies have operated in the political system, they are not as apparent as they are in Malawi and Zambia. For example, leaders’ holds on power have been relatively secure and the ruling SWAPO party has institutionalized and created some predictability in political life. The analysis in this book is dedicated to illuminating the extent to which these, and other, kinds of factors have shaped the experiences of judiciaries in the three countries. Two techniques underpin the analysis. The first is within-case process tracing toward the end of unearthing the key factors and causal mechanisms behind those experiences. Intensive case studies of judicial politics in each of these countries examine patterns of interaction between powerholders and the courts, and evaluate those patterns in light of larger theoretical concerns. The analysis allows investigation of the utility of existing approaches to the study of judicial politics and reveals novel insights about the variables that affect the choices and behaviors of governments visà-vis judicial institutions. In this respect, the case studies serve the classic purpose of both testing theory and generating new theory (see Eckstein 1975 or Gerring 2004). The second technique entails explicit comparative analysis toward the end of further investigating and illuminating theoretical claims. As I indicate above, conditions and factors hypothesized to affect government approaches and behaviors toward the courts vary among these countries. They also vary within them over time. Comparative analysis allows us to determine which of these plays the more central and determinative role in shaping the experience of the courts at the hands of powerholders. I undertake this analysis, in the first place, in the course of the case studies, as I illuminate differences within and between these countries and highlight the consequences for patterns of government interference with the judiciary. In the second place, in the final chapter, I offer a more systematic and refined comparative analysis of the experiences of the courts in these countries over time. Drawing from and summarizing material presented in the case studies, I present explicit tests of the leading thin strategic theoretical framework against an alternative model derived from the case analyses. The insights, as I have suggested, raise questions about the generalizability of the thin framework and confirm the importance of the factors emphasized in the study. The material and data informing the study was obtained primarily, though by no means exclusively, during fieldwork in these countries conducted between 2001 and 2006. Four separate trips to southern Africa allowed me to visit each of these countries for a minimum of two and a half

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months each. During these stays, but also through work conducted by research assistants in my absence, I undertook three different types of research activities. The first entailed a close analysis of the public record concerning judicial politics in these countries. This exercise allowed me to examine the narrative of judicial relations with other political actors and, particularly, the nature of interventions that representatives of other branches had undertaken with respect to judiciaries. It also enabled me to obtain reports of cases and decisions that have been before the judiciary, offering a deeper perspective on the cases and their significance than might be gleaned from a simple reading of the decision. My sources for this included government documents (such as parliamentary records and official statements by governing officials) and press reports on judicial issues. The second activity entailed interviews and discussions with key elites who observed and played a part in judicial politics in these countries—most notably, lawyers, government officials, opposition politicians, and judges themselves. In each country, a minimum of twenty different individuals were interviewed at least once. Many of these persons were interviewed second and third times on repeated visits to countries, while a select few became central discussion partners in the course of the research. The goal of these interchanges at the most basic level was to obtain richer perspectives and information about judicial relations with other branches and individuals since the start of the democratic era. This included their views of press stories and accounts of interactions that were not described in newspapers. Beyond this, I used these interviews to obtain elite perspectives on the key analytical issues of concern, in effect allowing individuals to offer their own perspective on why government-judiciary relations followed the patterns they did. It deserves mention that certain of the material gained from these activities, especially discussions with key elites, presented a unique challenge. One theme that I will raise in this book concerns the use by executives (or their agents) of clandestine and informal exchanges in their efforts to manage judicial institutions. By their very nature, such exchanges take place behind closed doors or at least out of direct public view. Reference to them sometimes emerges in news reports, but for legal reasons reporters are quite hesitant to make claims that cannot be irrefutably substantiated. More often, they are detailed in informal accounts, either by the participants of such interchanges or by those who have intimate knowledge of “the system.” This makes it quite difficult to document these and confirm beyond a reasonable doubt that they have occurred. Yet, as anyone who has studied politics in weak states with high levels of corruption and personalized exchanges knows well, the tentative evidence of such informal exchanges cannot be ignored. This point was driven home to me in my conversations with one Malawian lawyer in 2001. After I suggested that it appeared that the current administration

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had been quite restrained in its interference with the judiciary, he advised me that I was seeing only part of the picture. Plenty of interference, he alleged, had occurred in the form of clandestine conversations, such as late-night phone calls between judges and the executive or in the provision of material goods to judges in exchange for their support of the executive. My subsequent efforts to examine such matters revealed a number of off-the-record and informal accounts of such types of interchanges. While some documentary evidence did exist, it was relatively sparse. Nonetheless, because such stories of corruption, patronage, and off-the-record conversations represent a potentially critical part of the story, I have included them, along with other material, as evidence to support the empirical and theoretical claims advanced. This said, I have exercised considerable caution in my use of such material. Specific stories or accounts are included only if they were corroborated by at least two, and preferably three, well-placed individuals in separate interviews. Further, general references to informal contacts and exchanges are only included to the extent that they represent a key element of the informal transcript concerning the courts. For example, in the chapter on Namibia, I make no reference to such issues. This does not mean that no claims were made about them during my research, only that they emerged infrequently and were rarely corroborated. This was in stark contrast to accounts of judicial-executive interactions in Zambia and Malawi, which frequently contained specific stories of them. In all instances where such stories are included in the case studies that follow, I specify that they represent allegations or claims, with the implication that they cannot be irrefutably asserted as fact. My third and final research activity involved examination of high and supreme court decisions, with particular attention to those in politically significant cases (i.e., involving the government or key political actors). This allowed me to examine whether and how judicial decisionmaking shaped executive actions toward the judiciary. It also allowed me to examine whether and how judicial behavior and, in particular, judicial assertiveness toward other branches, changed in light of actions by powerful political actors.

Key Arguments and Overview My presentation proceeds as follows. In Chapter 2, I offer a theoretical overview of the key concepts and analytical frameworks employed in this study. I begin by discussing the concept of judicial autonomy as it relates to the larger concept of judicial independence and as empirically understood in this book. I offer a simple conceptualization of judicial autonomy, suggesting that it refers to the extent to which judiciaries have been able to exist and function without

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interference from the government or other powerful political actors. This then serves as the basis for the study’s focus on the choices and actions of powerholders with respect to judicial institutions; that is, whether and how leaders respect, undermine, or manipulate judiciaries. I then examine how the literature has approached the key analytical question that underpins this study: How do we make sense of the actions that powerholders take toward judicial institutions? Here I offer an overview of strategic approaches that have been used to address this issue. Scholars employing these approaches emphasize the role of powerholders’ utilitarian considerations with respect to the judiciary, as well as their relative capabilities to interfere with and manipulate those institutions. Leaders’ strategic calculations and capabilities with respect to the judiciary derive substantially from the political circumstances in which they find themselves. Political factors thus determine the choices and actions of leaders toward judiciaries and ultimately the extent of autonomy those institutions enjoy. A central distinction exists among scholars who employ such approaches. On one side are those who employ highly parsimonious thin models. As mentioned, these scholars tend to see leader choices and interventions with respect to the courts as a function of a narrow set of political variables, especially the level of uncertainty in the electoral market and the degree of power dispersion in the party system. There are, however, substantial limitations to such thin models. For one, they tend to have a very narrow view of the factors that affect the calculations and capabilities of leaders. They also fail to acknowledge how larger systemic and regime-level properties can affect the operation of theorized relationships. One corrective is provided by scholars who employ what Ran Hirschl (2004) describes as “thicker” models. These bring attention to a wider array of factors that affect the strategic calculations and capabilities of leaders with respect to judicial institutions. I similarly argue that we need a broader view of the relevant conditions and factors than is afforded in some of the more parsimonious models. The southern African cases illuminate the importance of three factors that are substantially overlooked by such models. The first concerns the extent to which political questions in the country have been effectively judicialized. By this, I refer to the increased placement of key political questions into the hands of the judiciary, often in ways that put the judiciary into potential conflict with powerholders in the legislative and executive branches. Thin strategic models tend to assume that executive interest in the court, and hence their inclinations to either respect or undermine judicial institutions, operates without reference to the kinds of issues that courts are asked to determine. Intuitively, however, we would expect that government interests regarding the court vary with the extent of judicialization. When courts decide key political issues,

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they place themselves on the radar of more powerful political actors their decisions affect. This increases the chances that leaders will attempt to undermine their autonomy. The second factor concerns the ways that judges themselves shape the course of judicial development. Through their decisions in cases, as well as via their broader engagements with key groups and actors within the political system, judges can shape and inform choices that powerholders make with respect to judiciaries. In so doing, they necessarily play a role in determining the level of autonomy they enjoy. Of special importance is the extent to which the courts signal a willingness to interfere with and undermine executive interests. Where they do, they increase the threat that they present to government and become likely targets of interference. The final factor involves the ways that larger systemic-level features shape the nature of government relations with judicial institutions. The key issue I bring attention to in this respect is the state weakness and neopatrimonial tendencies that have tended to operate in postcolonial African systems. The reason that such features are important lies in the way that they shape the strategic considerations of leaders with respect to judicial institutions. Neopatrimonial politics tends to amplify leaders’ interests in controlling judicial institutions. Within such contexts, leaders place high priority on maximizing and preserving power, and accordingly need to corral institutions and actors that stand in the way of such goals. However, despite such interests in controlling judiciaries, leaders in weak state and neopatrimonial contexts are limited in the extent to which they can rely on conventional techniques to rein in the power of the courts. As a partial result, they have relied on other techniques to manage judicial power. These include making use of the informal relations characteristic of neopatrimonial settings and using state and nonstate agents to entice or scare judges to support leader aims. While this may buy them some level of influence over the judiciary, and even undermine the status of the bench in the eyes of potential court supporters, it can also leave the judiciary with enough power and autonomy to play a meaningful role in challenging executives seeking to maximize and aggrandize power. The case studies draw these issues out more completely. In Chapter 3, I begin with an investigation of the experience of the judiciary in Zambia under the democratically elected administrations of Frederick Chiluba and Levy Mwanawasa. The case suggests, in the first place, that judges themselves have played an important part in shaping leaders’ interests with respect to the courts and the actions that those leaders have taken. Of special importance were the kinds of signals they sent regarding their willingness to interfere with the executive’s basic political objectives. As political life became increasingly judicialized in Zambia, court decisions indicating that the judiciary might undermine those objectives prompted government efforts to corral and curtail

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judicial power. Indeed, such signaling appears to have played a more significant role than the apparent level of electoral uncertainty in the system. As such, the case also raises questions about the ability of thin strategic models to effectively account for executive judicial relations in such contexts. Beyond this, the context of state weakness and neopatrimonial politics affected judicial politics in the country. Owing to these features of the political system, certain techniques of judicial control have been less available to Zambia’s executives. However, the context of neopatrimonial politics also presented unique opportunities for leaders seeking to control or render docile judiciaries. In particular, the concentration of power in the hands of executives and the existence of informal networks of political exchange opened up avenues to influence the judiciary through indirect and sometimes clandestine means. While this contributed to the overall passivity of the bench vis-à-vis executives, the courts still retained institutional power that they remained willing to exercise as political conditions permitted. The Malawian case described in Chapter 4 offers parallels to the Zambian, while generating separate insights as well. Even more starkly than the Zambian case, the Malawian offers a clear challenge to thin strategic approaches. Despite high levels of electoral uncertainty and wide power distribution, executives aggressively interfered with and sought to undermine judicial independence. The effort to account for both the impulse and styles of intervention employed by Malawi’s executives brings attention to all three of the factors highlighted above. As they operated in a neopatrimonial context, Malawi’s leaders faced high interests in reining in judicial institutions that might interfere with their goals of maintaining and maximizing power. These became especially acute in the context of, first, the judicialization of central political questions and, second, signals from Malawi’s judges that they were not disposed to support the government in their decisions. As executives sought to intervene with the courts, however, they faced real constraints issuing from the weak state and neopatrimonial environment in which they operated. In particular, both court-purging and court-packing strategies proved less viable. In turn, like their Zambian counterparts, they relied on techniques of control more suited to their political environment. Efforts to manage the courts focused on targeting judges at an individual level, as powerholders relied on alleged informal interchanges, public badgering, and threats to entice or scare judges into supporting executive aims. In the end, these failed to effectively rein in the courts, as judges came to be characterized, on the one hand, by high levels of assertiveness vis-à-vis the government and, on the other hand, politicization that undermined the institution’s image as a neutral arbiter of political disputes. The experience of the Namibian judiciary, discussed in Chapter 5, has been quite different from that of the courts in Malawi and Zambia, thus providing a

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key comparative case to support the study’s theoretical claims. On the one hand, the Namibian case offers the clearest refutation of thin strategic approaches. In view of those approaches, political conditions in the country should have prompted efforts to undermine the independence of the courts. But, to date, that has not emerged. On the other hand, in its comparison with the Malawian and Zambian cases, the Namibian case highlights the importance of both neopatrimonial politics and judicialization as central factors shaping the experience of judiciaries. Neither of these have been central features of the Namibian political environment. As a result, Namibia’s leaders have not been as threatened by judicial institutions and have developed little interest in undermining the courts’ power. This helps to account for a general pattern of restraint and responsible government behavior with respect to the courts. Finally, the Namibian case reveals most clearly the ways that judges, through their broader interactions within the political system, can shape the course of governmentjudicial relations to benefit judicial autonomy. Chapter 6 offers further comparative reflection and analysis of the key theoretical issues. Drawing from the case studies, I offer a more systematic account of the differences among the cases in terms of the extent and type of interference that judiciaries have encountered from governments. I then comparatively examine these differences in light of several factors theorized to affect government-judicial relations. This provides an even clearer refutation of the thin strategic approaches. Beyond this, it more effectively demonstrates the importance of the key factors emphasized in the case studies. In countries characterized by state weakness and neopatrimonial politics, leaders face powerful incentives to intervene in the courts, but also constraints on their ability to do so. This leads to unique patterns of judicial manipulation in these polities. Furthermore, leaders’ choices and actions with respect to the courts reflect the status and behavior of those institutions. High levels of judicialization and court signaling that judges are unwilling to defer to executive interests in their rulings represent threats to leaders. It is in such contexts that interference with the courts is especially likely.

Notes 1. As Stone-Sweet (2000) points out, constitutionalization necessarily facilitates a greater role by judiciaries. 2. On these concepts, see Diamond (1999: 42), Zakarias (1997), O’Donnell (1994), and Levitsky and Way (2002). 3. See Schedler (1998). 4. The Zambian case offers examples. See Simon (2005). 5. See Villalón and VonDoepp (2005), which includes several case studies revealing such instances.

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6. See, for example, Chanda (1992). 7. Gyimah-Boadi (1999); see also papers delivered at the Symposium on the Constitution and Constitutionalism, June 22, 2002, Blantyre, Malawi. 8. Namibia has also been influenced by the Roman-Dutch tradition, which is associated with the “civil law” framework. 9. As of 2003, Malawi has begun using panels of judges who sit as “constitutional courts.” The decisions of these panels are still subject to appeal to the Supreme Court. 10. See Ramseyer (1994) and Bill-Chavez (2003, 2004). The notion of thin models borrows from Hirschl (2004).

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2 Understanding Government Choices: Judicial Politics in Theoretical Perspective

To what extent have judicial institutions in Zambia, Malawi, and Namibia enjoyed some level of autonomy within their political systems and how do we account for their experiences? This question necessarily raises conceptual issues and forces us to consider theoretical perspectives and insights to inform the inquiry. This chapter addresses these concerns, while detailing the book’s central theoretical claims. I begin by exploring the notion of judicial autonomy as it relates to judicial independence and as it is conceptualized for the purpose of this study. I offer a conceptualization that focuses on the extent to which powerholders have respected or interfered with judicial institutions. This then establishes the book’s central theoretical concern, that of explaining the choices and actions of governments toward judicial institutions. Why do some leaders leave judicial power intact, while others seek to undermine it? How do we account for the patterns of intervention that we observe? The second section offers insight on strategic approaches to these questions, illuminating both their shortcomings and advantages. I then present the theoretical framework that guides the inquiry into the experiences of judiciaries in these countries and highlight the particular insights that emerge from the case studies. The final section explores the issue of judicial behavior as it relates to the question of judicial autonomy.

Conceptualizing Judicial Autonomy This study finds its inspiration in the idea that the rule of law, horizontal accountability, and rights protection are necessary accompaniments to democratic governance and the premise that judicial institutions are critical mechanisms to promote those goods. In order for judiciaries to do so, they need to 17

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enjoy some level of independence in the political system. One cannot expect judiciaries to challenge the actions of other branches if they are institutionally subordinate to those branches. Likewise, one cannot expect judges to challenge state dealings with citizens if the judiciary is subject to pressure, influence, or manipulation by powerholders. Yet the concept of independence is not nearly as straightforward as it might seem at first glance. Most understand why it is important, and most have an intuitive sense of its meaning. However, academic treatments of the concept do not necessarily leave one with a clear sense of how the concept should be used in empirical work. There is no agreement for instance on whether independence is most clearly manifested in decisionmaking (Becker 1970; Tate 1993), larger institutional structures (Herron and Randazzo 2003), or the broader ambit of relations between political actors and the judiciary (Russell 2001). Such conceptual disarray occurs despite efforts to refine the concept and offer guidelines for research (see Tate 1987; Larkins 1996; and Burbank and Friedman 2001). Rather than venture into the debates and conceptual challenges presented by the concept, I frame this research around the related term of judicial autonomy. This leads me to focus on the behavior of political powerholders vis-à-vis the judiciary as the central empirical phenomenon under investigation. My logic in proceeding in this manner is as follows. I begin from the premise that for the judiciary to serve its role in supporting democratization processes, it needs to be able to operate without externally imposed constraints on its ability to check other branches and without being influenced by political actors who have an interest in their rulings. This is the essence of judicial autonomy— it refers to a situation where judges can exercise meaningful authority without fear of or manipulation by other powerholders. As constitutional designers and advocates for judicial independence know well, codified rules and instruments—that is, institutions—represent a key means to try to promote this situation. Rules that disperse appointment and promotion powers, give judges security of tenure, and limit political control over judicial budgets and remuneration are all designed to build the autonomy of the institution. However, while such legal and constitutional guarantees are important, attention to them provides only limited perspective on how much autonomy is actually operating in practice. Christopher Larkins’s (1996) review of David Clark’s study on judiciaries in Latin America, for example, indicates that institutional provisions within a given system serve as poor measures of the reality of judicial independence. The problem is that, especially where judicial institutions are already weak relative to other branches, rules can be bent or broken by other actors with little consequence. Moreover, as Rebecca Bill Chavez reminds, attention to the formal structures overlooks the reality of informal institutions and practices that affect judicial

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autonomy. “Actual practices,” she maintains, “may illustrate that the formal institutions are mere facades that hide the subordination of the courts” (Bill Chavez 2004: 24). This takes on special significance when we consider the situation in new African democracies. While constitutions and legal provisions have greater significance in Africa today than they did twenty years ago, political life reflects much more than the institutional frameworks established to regulate it. Informal politics and extrainstitutional dynamics continue to substantially shape the course of events on the continent (VonDoepp and Villalón 2005). As such, efforts to understand the extent of autonomy the courts enjoy need to look beyond institutional or “parchment” guarantees and instead focus on behaviors and practices that impinge on that autonomy. In this sense, the lens shifts to the role of powerholders and how they relate to the judiciary in practice. The goal, following Peter Russell, is to examine powerholders’ relations with the judiciary with an eye to uncovering forces that undermine the likelihood of the judiciary taking an independent role in the political system (2001: 8). Have judiciaries been able to function without interference from the government or other powerful actors? Or have those actors impinged on their autonomy in various ways? The story of judicial autonomy in this respect is a story of how other actors have behaved with respect to the institution. We can appreciate that governments in varying contexts have chosen different options with respect to judiciaries. Some, for example, have chosen to enhance the authority of judicial institutions and further insulate them from political pressures. Others have simply left intact their existing power, opting for a strategy of noninterference. Yet others have taken steps to undermine the independence of and even control judicial institutions. There are a variety of ways this might be attempted. Some governments have used formal legal tactics, changing the rules and institutional structures governing judicial authority and relations with other branches of government. This might include changing the scope of judicial authority, such as declaring certain issues outside of the sphere of judicial competence. It might also entail alterations in the institutional protections enjoyed by judicial officers. Others have focused on personnel controls in their efforts to manage judiciaries, purging the bench of opponents and packing it with supporters. Yet another technique involves targeting judges on an individual level. Such “direct approaches,” as Russell terms them, involve rewarding those who are loyal to the government in their rulings while punishing those who are not. This can be done through administrative processes, involving the distribution of promotions or job assignments. It can also involve informal and shadow interchanges between judges and powerholders.1 As we will see, governments in the southern African cases have varied in their approaches with respect to judiciaries. This is apparent between countries,

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but also within them over time. In Namibia, for example, government has, for the most part, respected judicial authority, only minimally interfering with the institution. In Malawi and Zambia, different tendencies have been apparent. Governments in both of these countries have at times exercised restraint with respect to the judiciary. At other times, they have openly attempted to dramatically undermine judicial independence. And at still other times, they have used more subtle means to try and rein in the bench. The key challenge is to understand why governments have undertaken the actions that they have. The section that follows reviews the predominant approach to this question. Building on this, I then offer my own framework, foreshadowing the insights from the case studies.

Government-Judicial Relations in Theoretical Perspective Why do some leaders respect and even empower judicial institutions, while others undermine and subvert them? And in the event that they do the latter, why do some attack the courts’ institutional authority, while others adopt other techniques such as targeting judicial personnel on an individual level? Much of the recent scholarship dealing with judicial development has addressed these types of questions by utilizing strategic models of leaders’ choices. In this perspective, the actions that powerholders take toward judiciaries are understood to reflect three strategic considerations: (1) leaders’ perceptions about the expected utility of independent judiciaries (in both the present and the future); (2) the political costs of interventions that might undermine judicial independence; and (3) their specific capabilities with respect to the bench. These, in turn, are shaped by political conditions and factors. As the latter vary, so do respect for and interference with the judiciary. As Ran Hirschl describes it, strategic models come in thick and thin varieties (2004: 40). The thin models tend to be highly parsimonious in character, suggesting that respect or nonrespect for judicial authority is driven by a narrow set of factors that shape the interests of leaders toward the institution and their options to intervene in them. Most of these focus on the nature of electoral politics and the extent of power dispersion (versus concentration) in the system. A clear example of scholarship in this vein is found in the work of Mark Ramseyer (1994). For him, judicial independence—as reflected in the extent of executive manipulation of the careers of judicial officers—reflects the utility assigned to independent courts by rational politicians. Where politicians expect electoral government (that is, a democratic regime) to remain operative and have low expectations of their continued victory in elections, they will cultivate and respect the independence of the courts. The reason is that inde-

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pendent courts—especially if staffed by judges who share policy preferences similar to the current government—offer some insurance to current powerholders that their policies will have support in the state in the event that they are out of power in the near-to-medium term.2 By contrast, where an elected government expects to remain in power over the foreseeable future, leaders have limited incentive to provide independent courts and will likely opt to directly monitor judges. The same can be said where politicians expect the democratic regime to have a limited life span. Expectations of the future and the nature of electoral competition also figure centrally in the work of other scholars. Tom Ginsburg (2003), for example, argues that uncertainty over future electoral outcomes, coupled with power diffusion in the system, gives politicians an incentive to create robust and autonomous judicial institutions. Such judiciaries have utility as they provide an insurance mechanism for leaders who in the future may find themselves out of power and in the opposition. By contrast, where power is concentrated such outcomes are less likely. Similarly, Pedro Magalhaes argues that high electoral uncertainty gives leaders an interest in creating institutions that can protect minority interests at the founding of new constitutional orders. In turn, continued electoral competition, along with the potentially high costs and risks of institutional manipulation, minimize the prospects of efforts to undermine autonomous judiciaries (Magalhaes 1999). A final example of thin approaches is found in the work of Rebecca Bill Chavez (2003, 2004). In her view, the extent of independence enjoyed by the courts reflects the level of competition in the party system and the level of party discipline. Monolithic control by a single disciplined party will likely lead to executive interference with the judiciary. Because executives and their allies expect to remain in office over the foreseeable future, they seek to remove potential impediments to fully exercising power. Control of the legislature allows them to do so. By contrast, interparty competition bodes well for judicial autonomy. This gives leaders an incentive to develop systems of checks and balances, increasing the utility of an independent judiciary. Interparty competition also increases the prospects of divided government, which limits the capabilities of executives who might seek to interfere with the bench. Such thin perspectives are highly useful in highlighting how different objective political conditions shape different strategies toward the judiciary and, by extension, the extent of autonomy the institution enjoys. Yet there are certain limitations with these very parsimonious approaches. Three issues stand out. First, such approaches operate with a relatively narrow view of what drives leaders’ perceptions of the utility or nonutility of independent courts. Reducing these approaches to their most basic, they suggest that electoral uncertainty and robust interparty competition give leaders incentives to cultivate

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independent judiciaries. Conversely, electoral and political dominance by a single cohesive party provides incentives (and opportunities) to undermine judiciaries. Yet leader interests in the judiciary can be shaped by other considerations. For example, leaders in single-party dominant systems may develop an interest in cultivating and respecting judicial independence with the aim of reining in other institutional centers of power—such as subnational governments or potentially uncooperative bureaucrats.3 Courts can also serve the useful role of making politically challenging decisions that politicians would rather refrain from addressing (Whittington 2003, 2007). Moreover, foreshadowing key issues I raise below, it seems logical that leaders’ interests toward the institution will be shaped as much by the dynamic interactions between the courts and political players, as by the objective political conditions they encounter. For example, the utility of independent courts should decrease in the event they are charged with rendering decisions that touch directly on the key priorities of powerholders. Where the courts are deciding secondary issues, independence will be much more tolerable for leaders. Another intervening variable that can shape leader perceptions concerns the preferences of the courts themselves. While this obtains some discussion among those who employ thin models, in others it surprisingly does not. The assumption of some thin models seems to be that government choices with respect to the judiciary are made without reference to the apparent preferences of those who occupy the bench, and without reference to whether those judges signal that they will act on those preferences. Yet it is reasonable to suggest that government interests toward the judiciary can be informed by perceptions of whether or not the courts are aligned with the executive. Second, thin approaches do not give adequate attention to the way that systemic and regime-level characteristics inform interests and actions toward the judiciary. It is true that Ramseyer (1994) specifically incorporates expectations of democratic regime continuity into his model. Other thin theorists would likely qualify their discussions accordingly. Yet this fails to appreciate that utilities might vary across political systems—even democratic ones—depending on regime-level traits. C. Neal Tate, for example, suggests that leaders of “crisis” regimes—a type of authoritarian regime—have needs to leave the image of judicial power intact while ensuring that the courts do not interfere with the basic goals of the government. Accordingly, these leaders tend to delimit the institutional scope and depth of the courts, while leaving personnel in place (Tate 1993). Using a similar framework, Larkins (1998) suggests that leaders in “delegative democracies” wish to use the power of the judiciary to support the project of consolidating power in the hands of the executive. To this end, the Menem government in Argentina left the institutional power of the courts intact, while interfering with personnel on the courts,

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forcing the retirement of judges with whom he disagreed, and packing the court with his supporters. Finally, such approaches come up short in conceptualizing leader costs in intervening with the judiciary and their capabilities with respect to those institutions. For example, thin models fail to adequately recognize that, even in situations of single-party dominance, leaders may hesitate to undermine judiciaries because the costs of manipulating them may be quite high. Keith Whittington (2003) suggests that executives will hesitate to undermine the courts in the event that they might alienate the mass public, international audiences, or members of their legislative coalition. In other research, both Georg Vanberg (2000) and Jeffrey Staton (2004) describe situations where executives sought to undermine judicial authority, but were halted from doing so after it became apparent that such moves would generate condemnation from the mass public and media. Just as costs in intervention can vary across systems, so can capabilities. Consider the different types of techniques that leaders might use to control judiciaries. As Russell (2001) suggests, there are different methods that governments might rely upon to undermine the power and authority of the courts. Governments might engage in forms of institutional restructuring, altering the basic legal rules governing judicial relations with other branches. They might use personnel controls, either purging or packing the bench as necessary. Using remuneration of judges and funding for the judiciary represents a third line of control. Finally, governments can employ “direct approaches,” whereby judges are targeted at an individual and personal level with carrots or sticks in an effort to entice them to support the government in their rulings. Yet thin approaches fail to see that these different kinds of techniques are not equally available across political systems. For example, to foreshadow a key argument, personnel controls are more realistic means of control in some political systems than others. Where ideological and partisan loyalties are visible and deep seated, packing the courts with supporters and purging opponents represent viable means of controlling the judiciary. However, in societies where such loyalties are weak, personnel controls represent a very weak mechanism of judicial manipulation. Thus certain techniques of judicial control— and hence the ability of executives to manage judiciaries—may be substantially bound by the peculiarities of given political systems.4 The limitations of thin approaches can be partially corrected via the use of thicker models. In this respect, scholars retain the basic premise that government approaches to the judiciary reflect strategic considerations. However, they sacrifice some parsimony by employing more nuanced frameworks that bring attention to a broader set of conditions and factors that shape government-judicial relations. The work of Hirschl (2004) is exemplary. The focus of

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his work is steps to empower judiciaries via institutional changes that establish bills of rights and formal processes of judicial review. For him, thin approaches, focusing on “electoral market logics,” come up short in explaining such developments. Correcting for this, he develops a “hegemonic preservation” model that focuses on three sets of elites—economic, judicial, and political—and the conditions that bring them to push for the “constitutionalization” of judicial power. Consistent with thin approaches, political elites who are threatened by majoritarian decisionmaking are seen as the key players pushing for empowerment of the judiciary. Their interest in an independent court initially stems from the hope that such an institution can insulate their policy preferences and limit the power of majoritarian institutions in the future. However, their perceptions of the utility of an independent judiciary—and hence impulses to empower the courts—are also mediated by the character of judicial personnel. Especially important is the extent to which judicial elites are informed by a jurisprudence that mirrors the preferences of the existing political elite. Moreover, their ability to effect institutional changes requires the support of economic and social elites. In this respect, capabilities are shaped as much by the existence of allies who can aid efforts to push such reforms as by political realities in institutions and parties. Whittington (2003) also employs a thicker model to account for the choices of political actors toward the judiciary. Theorizing decisions to either curb the courts’ institutional power or leave it intact, he focuses first on the utility of independent courts to powerholders. As with thin models, the extent of electoral uncertainty is a key factor shaping the perceived utility of the courts. Yet utility is also informed by perceptions of whether the court’s preferences are convergent or divergent with those of powerholders. Where a court is convergent with the preferences of powerholders, respect for judicial independence will be greatest. Conversely a divergent court is most likely to be targeted by court-curbing measures. Yet this too is conditioned by other factors. On the one hand, court-curbing measures are more likely in the event that the courts have displayed a willingness to act on divergent preferences frequently and in a manner that undermines the central priorities of powerholders. On the other, politicians must consider the costs of efforts to curtail the power of the courts, especially in terms of estranging powerful political actors who would like to see the courts retain their autonomy.

A Framework for and Insight from the African Cases The thicker strategic approaches provide the starting point for investigating the experiences of judiciaries in the southern African cases. Seeking to make sense of the actions of governments and, especially, executives toward judicial

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institutions, I begin from the premise that the nature and extent of institutional manipulation has reflected the strategic considerations of leaders seeking to maximize their own power and protect their interests. These, in turn, have been shaped by political conditions and factors within these countries. Yet the political factors and conditions that have mattered are not those that obtain attention by those employing thin approaches. While levels of electoral uncertainty, party competition, and party discipline have played some role, they simply do not account for the nature and extent of executive manipulation of judicial institutions in the southern African countries. In order to obtain a more complete explanation of the patterns of intervention observed we need to bring attention to other factors and conditions that have shaped the interests, costs, and capabilities of executives with respect to judiciaries. Building from the previous discussion, three issues stand out in this respect: (1) the extent of judicialization witnessed in the polity; (2) the role that judges themselves have played in shaping their experiences at the hands of executives; and (3) the ways that systemic-level characteristics have shaped the choices and actions of executives toward judiciaries. Judicialization as a Variable As many commentators have noted, the growth of even nominally democratic and liberal regimes has been accompanied by a similar expansion in the role and activities of judicial institutions. One manifestation of this has been the increased judicialization of political issues in many countries. Definitions of this phenomenon vary.5 However, at a general level, it refers to the increasing placement of key policy and political questions in the hands of the judiciary. Often this expanding role of the courts in determining political questions comes at the expense of politicians who occupy positions of power in the executive and legislative branches. The reason that judicialization is important lies in how it places judicial institutions on the radar of other powerholders. To the extent that judges come to play a more prominent role in determining central political questions, politicians necessarily have to be concerned with the behavior and inclinations of the institution. For this reason, judicialization can give politicians an interest in influencing and managing judicial institutions. As Pilar Domingo puts it, “as judicial systems become more politically salient under democratic rule, and adjudication is seen to affect policy and political outcomes . . . it becomes highly tempting for the political class to seek to control the judicial watchmen” (2004: 111). Indeed, for this reason, scholars such as Ginsburg tentatively suggest that it is prudent for judiciaries to avoid certain kinds of political questions that can bring the courts into conflict with actors in other branches.6

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Yet judicialization is not uniform globally and the extent to which it has taken place varies among political contexts. In some areas it represents a central feature of political life, in others it does not. The reasons for this can vary. Greater levels of civil society mobilization and sophistication are conducive to judicialization, while lower levels are not (Epp 1998). Some courts have institutional structures and mandates that facilitate the use of judicial processes by social and political actors. For example, expansive provisions for “standing” or wide authority to review administrative actions can encourage high levels of judicialization (Rios-Figueroa and Taylor 2006). Finally, some indicate that divided government, especially insofar as it leads to ineffective governance and gridlock, can encourage judicialization (Tate 1995: 31). Notably, attention to this last factor reminds us of one potential limitation of thin strategic models. From the purview of such approaches, dispersed power, often manifested in divided government, pushes leaders to cultivate and respect judicial authority.7 Yet if we accept that judicialization is one source of government efforts to manage judicial power, dispersed power can actually have the reverse effect of encouraging government to undermine judicial independence. Regardless of the reasons for such variations in levels of judicialization, the more important point is that the extent of the phenomenon can have an impact on executive interests and behavior toward judicial institutions. To the extent that courts are playing a central role in determining key political questions, they are a potential threat to powerholders. This increases the prospect that those in positions of power will attempt to control them. Of course, judicialization does not operate independent of other factors. As I discuss below, it matters the most when it is combined with evidence that judges have and are willing to act on preferences that are incongruent with those of powerholders.8 Nonetheless, while it may not be a sufficient condition for executive interference with judiciaries, it does play a key role with other factors in shaping the extent to which governments develop an interest in managing judicial power. This will become especially evident in the Malawian and Namibian cases. In the former, the central role of the courts in determining key political questions, combined with court signaling that judges might not support government in their decisions, was one of the proximate sources of interference in the judiciary. By contrast, the Namibian case suggests that even where judiciaries demonstrate independent tendencies, governments will tolerate it if the courts are not deciding issues that go to the heart of their interests. Judges as Important Players A second factor illuminated by the case studies concerns the roles that judges themselves play in shaping executive actions toward the judiciary. As I indi-

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cated above, one of the striking features of some, not all, thin approaches is that the judiciary remains somewhat left out of analytical frameworks as a causal factor. Judicial preferences and actions are inadequately considered by scholars such as Ramseyer and Bill Chavez as variables that affect the interests and choices of executives with respect to the bench. Other perspectives, however, illuminate the importance of bringing attention to the way that judges themselves shape the process of judicial development. The literature suggests that the role of judges can be conceptualized in two ways. In the first place, as indicated in my review of thicker approaches, some scholars highlight the ways that judges, through their apparent preferences and patterns of decisionmaking, shape the interests and actions of powerholders toward the judiciary. In this respect, the primary focus remains government powerholders in the majoritarian branches. The decisions of judges are important because they shape powerholders’ perceptions about the likelihood that the judiciary will interfere with their political objectives in the future. This then affects the degree to which they perceive a need to intervene in the courts to minimize the prospects of such interference. A second way that judges’ roles have been conceptualized emerges from a somewhat different strand of literature than that associated with strategic models. Rather than simply view judges as important by virtue of their decisions in cases, some scholars bring attention to the broader types of actions through which judges affect judicial independence. In this way, judges are brought to the forefront of the analysis as creative protagonists in the process of judicial development. Justin Crowe (2007), for example, maintains that judicial reforms enacted under the leadership of Chief Justice William Howard Taft were the result of his creative entrepreneurship, which enabled him to convince the US Congress to enact reforms it was otherwise disinterested in. By helping to build organizational capacity and cultivate legitimacy for the courts, Taft was able to push reforms that built the autonomy of the federal court system. A similar perspective is provided by Jennifer Widner (1999, 2001). In her view, although political actors may have incentives to provide judicial independence at the founding of a constitutional order, their continued respect for independence cannot be assumed. Although political conditions may influence the behaviors of political actors in this respect, judges are important players who can undertake steps to help “lock-in” judicial independence. Judges, for example, can increase transparency and standards for professionalism within the courts in a way that enhances the standing and reputation of judges, both within the judiciary itself and in the larger political system. Judicial officers can also work to develop supportive constituencies and public support, which can protect the courts from attack by political actors. In the language of the

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strategic models, such efforts can both enhance the utility of the courts to powerholders and increase the costs to such powerholders of attacking and undermining judicial independence. The case studies that follow offer support for both of these views about the independent role played by judges. In the first place, consistent with scholars such as Whittington and Hirschl, the evidence suggests that apparent judicial preferences and, even more important, the patterns of decisions from judges, have been crucial factors informing the choices of government officials with respect to judicial institutions. Recalling the above point, this is especially true where judicialization has taken place and the courts are asked to rule on important questions. The perceived utility of court autonomy for leaders has been shaped substantially by the decisions of judges in politically important cases. I describe this factor as the nature of signaling from the judiciary to the executive. As we will see, government interference with the bench has been more typical when the courts, through their rulings, have signaled a propensity to interfere with and undermine the central interests of the executive. Where such signals have been absent, the judiciary has witnessed less interference. In the second place, some evidence from the case studies suggests that judges have played important roles in other ways. Admittedly, the empirical work devotes less attention to this issue, given the focus on executive decisions and actions toward the judiciary. Nonetheless, the case studies will illuminate some of the actions undertaken by judges in efforts to protect and preserve their institutions from interference and manipulation by powerholders, as well as some of the ways that judges have actually undermined their own authority and autonomy. Weak States and Neopatrimonial Contexts A final issue concerns how systemic-level characteristics shape patterns of executive-judicial relations. As mentioned, this is an issue that has received attention from scholars who highlight the relationship between specific patterns of executive manipulation with judiciaries and peculiarities of regime subtypes. However, attention to such issues has remained very much outside of the literature that employs strategic models. In the empirical chapters, I intend to demonstrate how peculiar features of these countries’ political systems affect the interests of leaders toward judicial institutions, the costs they face in manipulating them, and their capabilities with respect to them. The key features of political life that deserve attention concern the relative weakness of the states over which leaders preside and the extent to which they have operated in environments characterized by neopatrimonial politics.

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As most observers and students of African politics recognize, weak states and neopatrimonial politics have represented defining features of the continent’s political systems in the postcolonial era. The notion of state weakness generally refers to the limited legitimacy and constrained organizational capacities of African states. In the classic understanding of the continent’s political systems, at independence Africa’s states inherited juridical sovereignty, but lacked de facto sovereignty over territories and population.9 Not only did these states find their origins in externally driven colonial enterprises, but imperial powers did little to legitimize their presence with subject populations (Young 1985). Political practices since independence have done little to enhance the capacity or legitimacy of state structures. As a result, African states have remained weak in terms of their ability to obtain the willing compliance of citizens, extract resources from society, or generate basic public goods. Neopatrimonialism is closely tied to the notion of weak states, particularly as it represents a partial outcome of the legitimacy problems that state leaders encounter. In general terms, neopatrimonialism refers to a particular style of rule. Conceptually, the term borrows from Weberian notions of patrimonialism. This latter concept was used to denote a personalized system of rule where authority was exercised as an extension of the ruler’s household. Neopatrimonial rule refers to a situation where such a style of rule coexists with the trappings of a modern state and the pretense of legal-rational authority (van de Walle 2001: 51). Power is concentrated in the hands of an individual ruler who governs through the use of personal networks, clientelism, and coercion. While the bureaucratic and formal structures of the state may serve some function, it is the informal exercise of neopatrimonial rule that provides the basis of political authority. Neopatrimonial rule tends to be characterized by distinct practices. Elaborating on Bratton and van de Walle (1997), the first is the tendency toward presidentialism, understood as the concentration of power in the hands of the executive.10 Herein lies the “big man” syndrome used to characterize the dominating role of executives in African polities and the personalizing of political power around those individuals. Presidents not only dominate other institutions, but attempt to elevate themselves as the sole source of authority in the political system.11 Cults of personality are developed to enhance the symbolic centrality of the president. Policy choices are made by the president and the place of individuals within key state administrative positions reflect his choices. All of this reinforces the weakness of state institutions as the individual leader effectively places himself above those institutions in the exercise of power.12 A second practice concerns the use of clientelism. Partially because they have lacked solid bases of legitimacy, neopatrimonial rulers develop patron-

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client networks as a means of shoring up their authority. There thus emerge parallel and informal structures within and emanating from the state that allow for the exchange of political and economic goods. The president doles out jobs in the state and parastatal sector, public resources such as contracts, licenses, and loans from statutory corporations, and private benefits to individuals who, in return, provide loyalty and support for the executive. While the president is at the top of this system, patronage networks extend down through the state apparatus and society. Appreciating the latter point brings up a third practice: neopatrimonial rulers tend to routinely use public resources for their own benefit. Heads of state have privileged access to state treasuries, income streams from the extraction of natural resources, or shadow business operations.13 The political importance of such resources lies in their role in the patronage networks that are so critical for these leaders. In some cases, they represent the currency of what William Reno (1998: 2) has called “shadow states”—webs of relations between state leaders, private firms, and clients that form the underpinnings of political power and authority. More generally they offer leaders the opportunity to reward friends and allies and, by cutting access to resources, the prospect of punishing those who are disloyal. Finally, neopatrimonial rule often involves the use of violence and coercion. While leaders can build support bases via patronage networks, their holds on power are often perceived to be tenuous. And, as I will discuss below, the benefits of holding office, and the costs in losing it, place an exceptionally high premium on political power. Thus, apparent and potential threats to powerholders must be dealt with. When material resources fail to accomplish this, strong-arm tactics often become the modus operandi. This can involve a wide range of techniques: sending individuals to prison on fabricated charges, threats against family members, bullying, and actual violence against individuals.14 Just as neopatrimonialism involves certain practices, it is also associated with certain tendencies in the political system. For one, corruption tends to be endemic to societies characterized by neopatrimonial rule. Part of the reason for this corruption lies in leaders’ high needs for resources in order to maintain power. But it is also important to recognize that corruption is facilitated by a state environment where institutional capacity and oversight are limited, and by social norms and expectations (Bayart 1993; Ekeh 1975). In addition, neopatrimonialism tends to be associated with relatively high levels of insecurity for rulers.15 Owing to legitimacy problems discussed above, holds on power are themselves tenuous. Extralegal efforts to displace presidents via coups or assassinations have been common in Africa and palace politics is accordingly rife with intrigue and rumors of conspiracy. Beyond

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this, losing power has potentially high costs. The conventional wisdom and lesson from history in these societies is that those who are removed from power can suffer grave setbacks to their personal livelihood and well being. In Zambia, for example, former President Kenneth Kaunda was held under house arrest for nearly six months for his alleged role in a plot against his successor Frederick Chiluba. Kaunda was also allegedly shot at during an opposition rally, while his son was murdered under highly suspicious circumstances. Chiluba, on the other hand, has had economic resources stripped from him, been charged and convicted of corruption, and temporarily lost his passport at the hands of the government that replaced him. Finally, political alliances and loyalties tend to be highly instrumental and fluid in neopatrimonial contexts. Ideological markers are weak and the unstable environment of palace politics necessitates flexible loyalties as a means of political survival. This has represented a major problem for leaders in these polities. As loyalties tend to be shallow, many of those appointed to serve the leader cannot be trusted. As a result, leaders often make appointments to key posts on the basis of familial or ethnic ties. They also engage in the practice of frequently shuffling individuals in and out of positions of power (Sandbrook 1985: 90–92). Although neopatrimonialism was classically associated with authoritarianism in Africa, these practices and tendencies can operate across a variety of regimes, including democracies.16 As it involves an informal system of maintaining and exercising power, the formal rules of the game do not dramatically affect the extent to which the relations, practices, and tendencies associated with neopatrimonialism flourish. This is not to say that there is no variance in the extent to which individual countries are characterized by such features. Particularly relevant for this study, Namibia has been less hampered by neopatrimonial tendencies in political life. Part of this is likely a reflection of the fact that state-weakness—as manifested in the degree of legitimacy and capacity the state enjoys—has been less glaring in Namibia than in Zambia and Malawi. As we will see, this has had implications for the nature of executivejudicial relations. The conditions of state weakness and neopatrimonial politics can have a distinct impact on strategies and actions that leaders take toward judiciaries. Returning to the central notions underpinning the strategic approach, this can be seen in three respects. In the first place, these conditions, particularly neopatrimonial politics, can have a substantial impact on the utilities leaders assign to an independent judiciary. The key issue is that in neopatrimonial contexts leaders prioritize political survival rather than long-term institutional development. As such, their goals tend to involve maximizing and preserving power over the near-to-medium term.

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The reason for this obsession with power lies in two interrelated features of political life in these contexts. The first, as mentioned, is that leaders face exceptionally high costs when displaced from power. This is true even in situations where elections represent a primary means of displacement. Being out of power cuts individuals from the resources and rent-seeking opportunities that enable the lifestyles and comforts they have enjoyed. But more critically, former leaders are very likely targets for new administrations. The standard practices employed by neopatrimonial leaders often violate legal rules established by states. New administrations can represent the very individuals who were the targets of persecution and accordingly they may seek to respond in kind to those they displaced. Yet even where apparent allies come to occupy the statehouse, former leaders are still exceptionally vulnerable. As we will see in the Malawian and Zambian cases, new administrations may launch clean government campaigns and target members of a previous government for prosecution in anticorruption efforts. They can also seek to blame former leaders for current problems. Finally, given that former leaders necessarily cloud the efforts of new leaders to concentrate symbolic power around themselves, the latter may seek to eliminate the former from the political scene. Appreciating this helps us to understand why leaders in many of Africa’s new democracies have undertaken efforts to amend constitutions to allow themselves to stand for third presidential terms. Rather than accept the risks and costs of being out of power, leaders have attempted to extend their holds on power. The second feature concerns the persistent threats that leaders encounter while they are in office. Electoral displacement is not the only danger that leaders face. In both Malawi and Zambia, for example, leaders elected since the early 1990s have faced coup plots, impeachment attempts, and legal challenges to their elections. Holds on power can thus never be assumed, and threats to power from the opposition must be effectively managed. Supportive judicial institutions can be critical toward this end. Judiciaries are often the final arbiters in determining the validity of presidential elections. They can determine the ability of executives to keep alleged coup plotters behind bars. And they can sanction or undermine the efforts of executives to obtain allies and undermine opponents through tactics that border on the edge of legality. Given these features, leaders in neopatrimonial contexts will prioritize having supportive judiciaries in the present more than having autonomous institutions in the future. Compliant judiciaries are critical to the twin goals of maximizing power in the present and holding power over the near-to-medium term. Thus, even in situations of high electoral uncertainty and some degree of power dispersion, leaders may have little interest in cultivating judicial independence, as the thin strategic view suggests they should. Any long-term interests in developing independent institutions to protect leaders once they are out of power are effectively trumped by more immediate considerations char-

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acteristic of neopatrimonial politics. Indeed, in a situation of neopatrimonial politics such electoral uncertainty and power dispersion may heighten the insecurities of rulers, giving them an even greater interest in controlling judiciaries as a means to manage the immediate risks they face. The utility of independent judiciaries is thus quite low for leaders in neopatrimonial democracies and the impulse to control these institutions likely quite high. The latter will especially be the case where judiciaries represent a threat to powerholders by virtue of their deciding politically important cases and indicating willingness to render decisions against the executive in such cases. The conditions of state weakness and neopatrimonial politics are important in a second respect as they bear a relationship to the costs of manipulating judiciaries. As indicated, in some contexts, interests notwithstanding, leaders face high costs in manipulating judicial institutions. Vanberg (2000), for example, suggests that German leaders eschewed steps that might have undermined judicial institutions owing to the public and media support the judiciary enjoyed and the attendant electoral costs the government faced. Notably, the importance of public support for the bench is precisely the reason that Widner argues that judges are well served by cultivating legitimacy among the mass public and key elements of civil society (1999: 189). To the extent that executives face some sort of punishment from such constituencies for interfering with judiciaries, there is a decreased likelihood of open manipulation of those institutions. This issue has direct relevance for this study. Although leaders in weak state and neopatrimonial contexts may have compelling reasons to want to control judiciaries, they also face unique costs for intervening with those institutions. The key issue here concerns the needs of many such leaders to be responsive to international norms and expectations about maintaining the rule of law and democratic governance within their societies. These needs are especially acute for leaders in states with limited revenue capabilities and high levels of dependence on foreign aid to finance budgetary needs. For countries like Malawi and Zambia, for example, aid represents 29 and 13 percent of GDP, respectively.17 Such dependence on foreign aid necessarily links these states to international discourses and expectations specifying the need to uphold judicial independence. This opens up opportunities for key supporters of judicial institutions to place pressure on governments to respect the independence of the courts. There are two key judicial support groups that deserve attention in this respect. The first are, of course, foreign donors who are often represented on the ground in African capitals and have regularized contact with African leaders. That such donors are forthrightly concerned with governance and the rule of law is obvious to any who have paid attention to the discourse from multilateral and bilateral aid agencies since the mid-1990s. In Africa’s existing

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democracies, these concerns translate into pressures on governments to uphold the rule of law and the framework of democratic governance. To be sure, this does not mean that donors can completely check governmental interference with the judiciary. As Steven Levitsky and Lucan Way (2006) point out, western “leverage” over weak state rulers can rarely force governments to fully democratize and build liberal institutions. The most that donors can hope for is that their prioritization of such concerns about democracy and the rule of law forces governments to retain some level of “presentablity”; that is, retaining the trappings and paraphernalia of democratic and constitutional government.18 Yet even here, the role of donors in shaping government actions toward the judiciary is important. At a minimum, to the extent that donors play an influential role, they can raise concerns and threaten to punish governments that grossly interfere with the independence and authority of the courts. The second support group is elements of civil society concerned with judicial independence. This includes the media, public advocacy groups, and, most especially, legal associations. These groups, as we will see, are often vociferous advocates pushing governments to uphold international norms concerning judicial independence, sometimes acting in concert with foreign donors. Although they may lack the tangible leverage that donors hold over governments, they often can operate with high levels of visibility. And especially when acting in tandem with donor interests, such civil society elements can also put pressure on governments to respect judicial independence. As a result of the pressure such support groups can bring to bear, many governments in weak African states are constrained in terms of the options available to them with respect to the courts. For example, extreme institutional restructuring—that is, altering the basic rules that govern the authority and insulation of the judiciary—will likely be met with opposition from judicial support groups. As many donors would view such restructuring as a threat to constitutional government, leaders in donor-dependent weak states will face exceptionally high costs in undertaking such measures. Moreover, open violations of the rules governing the security of tenure or appointments will likely also be met with disapproval from key support groups. As we will see, donors and civil society groups have played quite visible roles confronting government plans to interfere with the courts in such fashions. This does not mean that leaders have been unable to intervene with and manipulate the courts. It suggests, however, that certain interventions—especially those that undermine the presentability of these regimes—are less palatable owing to the potentially high costs of generating public reproach from civil society groups and estranging foreign donors. The final issue concerns how neopatrimonial politics affects the capabilities of governments with respect to judiciaries. As mentioned, one of the key

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features of neopatrimonial environments is the very flexible and instrumental nature of political allegiances. This represents a dilemma for leaders in these contexts. While they need individuals to staff key posts in the state apparatus, they can never be sure about who their friends and allies actually are. As I have argued elsewhere, this situation creates unique problems for leaders seeking to control judicial institutions (VonDoepp 2005c). As many recognize, apart from institutional restructuring, one of the primary means that executives use to control judiciaries is controlling personnel on the bench.19 Purging the courts of opponents and packing them with supporters presumably can offer a means through which executives can create compliant judiciaries. Yet for leaders in neopatrimonial contexts this represents only a blunt and likely ineffectual mechanism of control. Owing to the weakness of ideological markers in the polity, it can be difficult to identify “loyalists” among the individuals who might be eligible for appointment to the courts. Those eligible for appointment to high courts, the rung below supreme courts in these countries, might have only limited records to indicate their apparent loyalties. Those eligible for supreme court appointments, by contrast, might have records of decisionmaking that offer an indication of the pro- or antigovernment tendencies of a particular individual. But even that may offer little indication of the longer term inclinations of a judge. Even if an apparent “loyalist” can be identified, executives have little reason to assume that they will remain loyal over the medium term. The nature of politics in these contexts suggests that they might not. Research indicates that judges can be strategic and follow the political winds when making decisions.20 This point is likely not lost upon executives. Hence, while they might be able to appoint apparent allies to the bench, they have little assurance that those allies will remain loyal if political winds change. Consider then the situation that leaders in weak state and neopatrimonial contexts find themselves in with respect to the judiciary. Owing to their circumstances, they have every interest in controlling judicial institutions that can interfere with their maintaining and maximizing power. Yet their options with respect to those institutions are somewhat constrained. International norms, supported by donors and civil society groups, demand that they respect at least the formal trappings of judicial independence; hence they cannot dramatically alter basic institutional structures governing relations with and the authority of the judiciary. Moreover, circumstances do not allow them to rely on court-purging or court-packing strategies as means of control. This does not mean that executives lack options when it comes to efforts to manipulate and control judicial institutions. Just as the situation of state weakness and neopatrimonial politics forecloses some paths of intervention, it also opens up other opportunities to influence the judiciary. Recall that personalized and informal relations, not institutions or formal rules, are the key to ex-

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ercising power in these systems. Institutional constraints on leaders may be vague and interinstitutional boundaries are often porous. This means that leaders can use the practices associated with neopatrimonial rule in efforts to control the bench. Much of this entails the use of “direct approaches,” targeting judges at an individual level with carrots and sticks.21 For example, judges can be brought into shadowy clientelistic networks where resources are exchanged for support. Such resources might include positions on parastatal boards or government commissions, access to state loan facilities, or material resources. Members of the executive branch can also contact judges to express concerns about their inclinations or even present vague threats. Given the power of the executive in these systems, the latter can be quite effective. In neopatrimonial contexts, presidential prerogatives can dominate the activities of institutions established to serve the public good. Anticorruption agents, public prosecutors, and others are frequently under the influence of the president (Hills 2007; Heilbrunn 2004). Public investigations and even mere inquiries from these individuals can be used to cow judges into subservience. Finally, to the extent that presidents are able to elevate themselves as the central location of power in the polity, judges will need to fear them simply by virtue of the threat that executives can present. Public badgering of individual judges by the executive, for example, can give license for presidential supporters to go after judges who are too independent in their decisionmaking. As we will see, in Malawi and Zambia, where state weakness and neopatrimonial politics are signal features of the political system, these are precisely the kinds of strategies that governments have relied upon to control judiciaries. Governments in these countries have had considerable interest in controlling judicial institutions, but faced constraints in their abilities to do so. At the same time, the context has afforded leaders opportunities for undermining judicial authority, and they have indeed made use of these to the detriment of the institutions. Notably, Namibia, where such features are less apparent, has witnessed somewhat different tendencies in both the nature and extent of executive interference with the bench. Interactions One final issue that deserves highlighting concerns the interactions between these three factors. As I specified above, judicialization has far greater significance when combined with court signaling that judges are willing to undermine executive interests in their rulings. If the courts are wholly deferential to the government, it matters little what kind of cases they are charged with deciding. Moreover, such signaling matters much more to executives when the courts are charged with deciding key political questions. Antigovernment ten-

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dencies on the courts are far less troubling for executives when the courts have little say over key political questions. Neopatrimonialism also interacts with those factors. Judicialization and signaling matter much more in a setting where a leader’s hold on power is tenuous and the title of “former president” comes with enormous risk and costs. Given their already precarious and uncomfortable situation, the last thing leaders need is a hostile judicial institution deciding questions that have direct bearing on their fates. The immediate task of holding power thus demands action in the event that the courts obtain the power to affect the executive and indicate that they might do so adversely. In neopatrimonial contexts then, the kinds of cases that judiciaries are charged with deciding and how they decide those cases today is far more important for determining leader actions toward them than leader perceptions of the function they might serve in the future. The Malawian and Zambian cases will bring this into sharp relief.

Judicial Behavior as an Area of Concern Although the central concern of this study is the choices and behaviors of government, it also focuses at a secondary level on the patterns of judicial decisionmaking that take place in the context of government interventions. This is distinct from my attention to the behavior of judges as an input into the strategic considerations of powerholders. In that sense, judicial decisionmaking is considered insofar as it helps to account for the actions and interventions of powerholders toward the judiciary. Going beyond this, in the case studies, I also bring attention to judicial behavior in order to offer additional insight into the willingness and capacities of the courts in these countries to serve as instruments of accountability and the rule of law. My goals in bringing attention to such patterns are less analytically oriented than a means to complete the story of judicial autonomy in these countries. This said, the attention to this issue deserves to be put into some theoretical perspective. Especially important is an understanding of how judicial behavior relates to issues of autonomy and independence as understood in the literature and employed in this study. One tradition of scholarship in judicial politics has focused on judicial decisionmaking in political cases as an indicator of the extent of judicial independence in a system. Consistently progovernment decisions presumably signal low levels of independence, while tendencies to side against the government indicate higher levels (Becker 1970: 144; Tate 1993: 314). Yet the issue of treating judicial behavior as an exclusive measure of the independence and autonomy of the institution is somewhat controversial. The problem is that levels of autonomy are not necessarily reflected in the patterns of pro- and

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antigovernment rulings rendered by courts. Because judges base decisions, in principle, on legal arguments, case law, and the interpretation of statutes, decisions that support the state may not necessarily point to limited judicial autonomy. They may simply reflect better arguments being mustered by the state in cases. Much the same, antigovernment decisions may simply reflect inordinate courage on the part of judges, rather than autonomy (see Russell 2001: 8; Larkins 1996: 616; Widner 1999: 178). However, if we eschew attention to judicial decisionmaking entirely, we lose potential insight into the question of judicial autonomy. One of the key reasons that we are concerned with judicial autonomy as a phenomenon is precisely because we expect that it allows judges to act independently in checking other branches. Without the former, the latter is less likely—though not impossible. Thus, there is necessarily a connection between judicial decisionmaking on the one hand, and the autonomy of the institution on the other. For this reason, attention to judicial behavior remains an important component of efforts to illuminate judicial independence and autonomy. The challenge is to examine behavior in a manner that is sensitive to the potential hazards of using it as a metric of judicial autonomy. One potential pathway is offered by Larkins, who calls for close readings of court decisions and opinions, focusing on how decisions are reached as much as on which decisions are reached. Such an “interpretive exercise,” in his view, can go a long way toward identifying the obstacles to judicial independence (Larkins 1996: 619). Rebecca Bill Chavez, on the other hand, uses “rulings that challenge executive interests” as one indicator of judicial independence. In this respect, judicial decisions in political cases represent one measure, along with others focusing on the actions of the government toward the judiciary, that is used to evaluate the extent of autonomy (Bill Chavez 2004: 26). Building from this, my attention to judicial behavior sheds light on two issues. On one hand, by looking at the patterns of decisionmaking in important cases we are able to evaluate whether interventions by government to undermine judicial power are reflected in judicial behavior. We might expect, for example, to see different patterns of behavior in situations where governments have taken a relatively “hands-off” approach toward the judiciary as opposed to where they have badgered and/or cajoled judges. This, indeed, is what we find when we compare the cases of Zambia and Namibia. Judges have been more deferential to executive interests in the former, partially, I suggest, as a reflection of the greater interference the judiciary has experienced at the hands of executives. This suggests—consistent with the approach taken by Bill Chavez—that patterns of judicial behavior help reveal the extent to which judicial autonomy has been compromised in given situations. On another level, bringing attention to judicial behavior helps bring light to an issue that I have elsewhere labeled “the problem of judicial control”

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(VonDoepp 2005c). Although governments may have every interest in curtailing the power of judiciaries that stand in the way of maintaining power and maximizing objectives, and although they may interfere with and manipulate judiciaries in efforts to minimize their disruptive potential, in some contexts judges can retain the ability to render decisions that undermine the interests of those in power. And, especially where political circumstances suggest limitations in the power and durability of those governments, they may very well be willing to render such decisions. Both Malawi and Zambia reveal situations where executives sought to render judiciaries either supportive of their goals or at least docile in the face of efforts to maintain and increase power. However, executives in these countries were not always successful in these respects as judges sometimes abandoned them at their hour of need. This serves as reminder that where judiciaries retain some level of institutional power, they remain an important part of the landscape whose potential to serve as a check on the executive should not be dismissed so long as the basic contours of constitutional rule remain intact. In short then, my attention to judicial decisionmaking is not the central element of the analysis. However, it entails an important part of the story of judicial autonomy operating in these countries. This is especially true as it deals with what is presumably the most important issue with respect to the judiciary: its capacities and willingness to actually exercise authority in a manner that constrains other branches and supports the rule of law. *** The next three chapters offer case studies of the experiences of judiciaries in Zambia, Malawi, and Namibia, providing the empirical material to illuminate the book's central theoretical arguments. In each, I will focus on detailing how executives in these countries have approached and intervened with judicial institutions, offer an explanation for their choices and actions, and describe how judiciaries have behaved in light of these. The central theoretical insights emerge from my effort to account for the patterns of intervention within these countries.

Notes 1. This overview draws from Russell (2001: 13–22). 2. This builds from earlier arguments presented by Landes and Posner (1975). 3. See Widner (1999: 180–181) and Whittington (2003) on these points. 4. See VonDoepp (2005c) on this point. 5. See Vallinder (1995), Domingo (2004), and Rios-Figueroa and Taylor (2006). 6. Ginsburg (2003: 88).

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7. See especially Ramseyer (1994) and Bill Chavez (2004). 8. See Whittington (2003) on this point. 9. See Jackson and Rosberg (1985) or Englebert (2000). 10. See also Jackson and Rosberg (1982). 11. See Schatzberg (2001) on this point. 12. See Sandbrook (1985), Bratton and van de Walle (1997), or Schatzberg (2001). 13. See Bratton and van de Walle (1997: 67) on this point. 14. On the use of violence in such polities, see Sandbrook (1985: 96) and Bayart (1993: 238). 15. See Jackson and Rosberg (1982: 58). 16. See Englebert (2000: 99) and Erdmann and Engel (2007) on this point. 17. See Moss (2007: 118). For Namibia, the strongest state in the study, the figure is just above 3 percent. 18. The notion of presentability borrows from Joseph (1998: 4). 19. See Russell (2001). Indeed, Ramseyer (1994) and Bill-Chavez (2004) point precisely to such tactics when describing government interference with judicial autonomy. 20. See especially Helmke (2002). 21. See Russell (2001: 20) on the notion of direct approaches to managing the courts.

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3 Neopatrimonial Politics and the Intimidation of the Courts in Zambia

Zambia was one of the first African countries to undergo democratic transition during the continent’s second liberation in the early 1990s. The end of the single-party era ushered in great expectations within and outside the country for positive changes to ensue. Writing in 2008, the score card on democratic progress has been decidedly mixed. Despite the advances of the early 1990s, by the latter part of the decade gains in political and civil liberties had weakened, corruption appeared rampant, and the rule of law on shaky ground. Trends under the administration of Levy Mwanawasa (2002–2008) were more positive.1 Yet key questions remain about the kind of democracy that is emerging and the prospects for the development of a liberal regime with robust protections for civil rights and effective constraints on executive power. An independent and assertive judiciary is critical for such developments. This chapter reviews and attempts to account for the experience of the judiciary in Zambia since the installation of the democratic regime in 1991. After reviewing the history of the judiciary from independence through the transition to multiparty politics in 1991, the chapter’s main analytical discussion falls into two sections. The first examines judicial development during Zambia’s first ten years of democratic rule, when the country was governed by Frederick Chiluba and the Movement for Multiparty Democracy (MMD). The second focuses on the period from 2002 to 2006 when the country was governed by his successor, Levy Mwanawasa, also of the MMD. The primary foci of the chapter can be broken down into three questions. First, what has been the nature of executive and government interference with judicial institutions during these two administrations? Second, how do we understand the choices that have been undertaken? And, finally, what have been the implications of these choices for the behavior of the judiciary, in terms of their willingness to assert themselves vis-à-vis powerholders?

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The second question represents the central analytical concern. My argument in this respect returns us to several of the theoretical themes raised in Chapter 2. Keeping with the premise of strategic approaches, I suggest that the choices and actions of Zambia’s leaders with regard to the judiciary reflected their strategic considerations, as conditioned by political factors. Although thin strategic models emphasize the central influence of electoral uncertainty and the extent of power dispersion on such choices and actions, such factors only poorly account for the experiences of Zambia’s judiciary at the hands of executives. The effort to make sense of those experiences demands attention to other issues. The first of these concerns the status and role of the judiciary itself within the political system. In Zambia, government interests and actions with respect to the courts have been strongly shaped by the dynamic interactions between the courts and their political environment—particularly the extent of judicialization and the nature of signaling from the courts. The relatively limited interference in judicial matters during the first four years of the Chiluba government partially reflected the fact that the judiciary rarely challenged fundamental government interests. Executive interference with the courts in the subsequent periods of his administration can be traced to the rising importance of those institutions in political life and, more fundamentally, to judicial rulings that indicated they represented a threat to him. Under the Mwanawasa administration, government interference with the courts was more limited, partially owing to the relatively deferential posture that the judiciary adopted during his time in office. Beyond this, the Zambian case, like the Malawian, suggests the importance of the neopatrimonial, weak state environment, showing in particular how that environment can shape executive choices with respect to the judiciary. On the one hand, this environment can shape government interests regarding the judiciary, particularly as it can amplify government perceptions of the need to intervene in the courts. This was especially evident during the Chiluba administration. Actions taken while he was in power indicate that his government was more concerned with the creation of a docile judiciary than with the development of an insulated institution that might protect them and their interests in the event that they were out of power in the future. Efforts to control the bench took place despite the fact that there were relatively high prospects of Chiluba losing power over the medium term, which thin models suggest should give leaders an interest in cultivating judicial autonomy. Neopatrimonial logics trumped whatever interest he might have had in doing so. On the other hand, the neopatrimonial and weak state environment shaped the choices available to Zambia’s leaders. Because of this environment, conventional judiciary-controlling techniques were not viable options for the government. For example, government plans to restructure institutional arrangements

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in a manner that enfeebled the courts were withdrawn in the face of civil society and donor opposition. Moreover, court-packing offered only limited potential for controlling the judiciary. However, while the weak state and neopatrimonial environment obviated those techniques, it also offered prospects for using others to manage the bench. The available evidence suggests that Chiluba relied on personal contacts and worked to embed judges in shadow networks of corruption and patronage. Beyond this, both Mwanawasa and Chiluba were able to use their dominant position at the center of the political system to take actions against judges who challenged executive interests. One final point addressed in this chapter emerges from attention to the patterns of judicial behavior in this context. Operating from a position of political weakness, and being the target of recurrent, though not consistent, interference and harassment from government, judges operated with a general hesitation to challenge and interfere with the executive. Yet, at the same time, judges, especially those at the High Court, continued to render decisions that contradicted the interests of government—sometimes in ways that had substantial implications for the ability of executives to maintain power. This serves as a reminder that even in situations where judges appear to operate under duress, to the extent that their institutional power remains intact, they can still affect the course of regime development.

Legacy: The Judiciary and the First Two Republics As with most other British colonies in Africa, when Zambia achieved full independence in 1964 it inherited the basic structure of a limited constitutional democracy. For the first eight years of independence, this provided the operational guidelines for the government. Integral to this were provisions that safeguarded the rights of citizens, limited the power of the executive, and established mechanisms to promote the independence of the judiciary (Wanke 1974: 605). The basic structure of the courts at independence reflected some degree of legal dualism coming out of the colonial period. At the apex of the common law court system was a Court of Appeal created under the 1964 constitution to serve as an appellate court for the High Court. Under the Court of Appeal was the High Court, which had substantial jurisdiction and wide powers, including powers to review lower court proceedings and judgments. Magistrate and other native, provincial, and district judicial authorities fell beneath the High Court. At independence, the High Court and Court of Appeal were staffed by expatriates, as were the most of the magistracies (Wanke 1974: 238). Legal changes enacted from 1965 to 1967 effectively eliminated the “native” court structures, leaving in place a system where the Court of Appeal stood as the

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top appellate court, beneath which were the High Court, subordinate courts, and local courts. This basic structure remains in place today. Kenneth Kaunda and his United National Independence Party (UNIP) consolidated their status as the leading political forces in Zambia with elections in 1964. As with many other postindependence leaders, Kaunda and UNIP espoused principles of promoting unity and development in the country and saw their dominance of the political order as a means to achieve this. Initially, the government was content to work within the existing constitutional framework. Yet the opposition proved more resilient than the government had originally hoped. By the early 1970s, especially as UNIP began to fracture along ethnoregional lines and new opposition parties emerged, the government took an increasingly hard line, using emergency powers (left over from the colonial period) to detain opposition party members and proscribe their activities altogether. In this context, Kaunda moved ahead with plans to change the constitution and create a one-party state.2 During the first eight years of Zambian independence, the judiciary played a visible, but not central, role in politics. Judges of the top levels of the judiciary (all of whom were white), were faced with rendering several important decisions that addressed the nature of executive power and the developments leading up to the creation of a one-party state. In general terms, the bench was supportive of the government, but also proved willing, in some specific cases, to delimit executive power and side with government opponents. Thus the courts upheld the use of emergency powers to detain individuals and declined to inquire into the merits of detention orders (Chanda 1992: 374). They also decided in favor of the government in a key case in 1972 when opposition politicians attempted to halt the development of a one-party constitution.3 Yet the courts also asserted that detention had to be conducted under specific regulations and decided against the government in a case where the speaker of parliament refused to recognize the leader of the opposition.4 While the government was broadly supportive of judicial independence, it also proved willing to interfere with the court. The most egregious example of such interference occurred in the wake of a 1969 decision wherein an expatriate High Court judge quashed the sentences of two Portuguese soldiers who had been found guilty of illegally entering Zambia. President Kaunda, a major opponent of the continued colonial presence in Africa, claimed that the judge’s language in the decision represented a direct criticism of him and called on the chief justice to explain whether the judiciary was working for a foreign power. When the chief justice offered support for the judge, UNIP party members organized protests. Some five hundred youths stormed the courthouse in search of the two judges. Protesters then marched to the State House, where Kaunda thanked them for their support and promised to “Zambianize” the judiciary in the near future. In the wake of this, three of Zambia’s most qualified judges,

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including the judge in the decision and the chief justice, resigned from their posts and left the country (Chanda 1992: 370; Wanke 1974). The incident in 1969 reflected some government frustration over their inability to “Africanize” the judiciary. The independence constitution placed such substantial restrictions on qualifications for the upper echelons of the bench that no African would have been eligible for appointment until the 1970s. A constitutional amendment, passed in 1969, allowed the first African to be appointed to the bench in 1970 (Molteno and Tordoff 1974: 368).5 Notably, while these changes expanded the pool of those eligible for appointment, they did not necessarily expand executive control over the bench. By one account, Kaunda did not politicize his appointments to the bench in the wake of this (Wanke 1974). In December 1973, a new constitution came into effect that formally established a one-party democracy. The new order left the UNIP Central Committee, and especially Kaunda, as the primary powerholders in the country. As the system evolved, governance became increasingly centralized and authoritarian under Kaunda’s rule, whose position was unassailable.6 However, the second republic never evolved into the highly repressive system that characterized neighboring Malawi. Indeed, although the system formally concentrated power in the hands of the single party and the executive, the 1973 Zambian constitution retained a specific bill of rights. As a partial reflection, parliament remained an arena of lively discussion, with backbench members of parliament (MPs) sometimes criticizing government performance (Maipose 1996: 59). Dissent also emerged within elements of civil society, albeit in a context where activities were curtailed and civic leaders faced the prospect of detention and where civil society itself consisted largely of churches, unions, and professional associations (Mwanakatwe 1994: 110). The framework of the one-party state retained the basic four-tiered structure of the court system. At lower levels were the local courts and subordinate courts staffed by magistrates. The High Court, constituting the third tier, remained with broad-based powers and nearly unlimited jurisdiction over civil and criminal matters. The Court of Appeal, renamed the Supreme Court, possessed both appellate and original jurisdiction, although it functioned largely in an appellate capacity (see Chanda 1992: 356–358). At the same time, although the new constitution retained provisions for the exercise of judicial authority, the president’s powers over the judiciary increased. This was especially true in terms of control over appointments. Appointments to the Supreme Court became the sole prerogative of the president, who needed only follow guidelines for eligibility when appointing judges. For appointments to the High Court, the president needed to consult with the Judicial Service Commission, a body that under the independence constitution had authority over judicial appointments, discipline, and removals. During the first republic the

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body was composed mostly of judicial officers. However, a constitutional amendment passed in 1974 altered the composition of the commission in a manner that expanded the influence of the president over the body (Chanda 1992: 350–351). In addition, under the single-party system, judges could be dismissed on grounds of misbehavior, but only on the advice of a tribunal appointed to investigate the charges. Such provisions remain part of the constitutional framework today. Overt manipulation of the courts was somewhat restrained during the second republic and several authoritative accounts maintain that judicial independence was basically respected during this period.7 This said, some observers pointed out that Kaunda’s transferring of judges from the judiciary to the executive branch, and then back again, minimized the reality of separation of powers (Maipose 1996: 62). Several others emphasized that the chief justice, Anel Silungwe, came to be regarded as very closely connected to Kaunda, both in terms of his personal relationship to the president and his willingness to support him in cases that came before the Supreme Court.8 On their part, the courts tended to play a deferential, though not wholly subservient, role. When issues concerning the political order or the power of the executive came before judges, they usually supported government. For example, the courts sided with the government in a case where two potential presidential candidates were prevented from running on the UNIP ticket (Phiri 2006: 164). The courts also refused to inquire into the reasonableness of the state of emergency in operation since independence and supported the government’s exercise of detention powers under state of emergency provisions.9 In other cases, the courts took an independent line. Thus, the Supreme Court acquitted individuals who had been found guilty of treason at the High Court. Moreover, in two important cases, the courts ruled that the government had to have reasonable grounds to detain individuals and that the court was competent to adjudicate such matters.10 Yet while the actions of the courts were important in introducing some level of reasonableness in the exercise of executive, especially detention, powers, their role in checking executive power and protecting civil liberties should not be overstated. As Chanda put it: when civil liberties cases presented any real choice within the constitutional language, courts almost invariably sustained the government action impugned. . . . Most of the detention cases were decided in favor of government as the courts, except for one or two exceptions, declined to inquire into the merits of detention orders. . . . The only cases that were decided in favor of detainees were those in which there was clear noncompliance by the government with the procedural safeguards laid down by the constitution or where torture was conclusively established. In many such cases the government simply issued a fresh detention order curing the original error. (1992: 374–375)

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The courts were thus either compliant or unable to check the excesses of the single-party regime.

The Courts and the Move to Multiparty Politics By the late 1980s, the Kaunda government began to face a severe political crisis engendered by mounting economic problems and popular frustration with the excesses of his regime. In this context, calls for political reforms and the reintroduction of multiparty politics increased. Such voices coalesced in July 1990 with the formation of the Movement for Multiparty Democracy (MMD), which represented a coalition of union members, alienated political and business elites, and intellectuals dedicated to pushing for a return to democracy. The result was a broad-based movement challenging the government to liberalize the political system. Although Kaunda initially resisted demands for the reintroduction of multiparty politics, in September 1990 he announced that the government would amend the constitution to legalize political parties other than UNIP. In the wake of this, a debate emerged over preparing a new constitution for the third republic. While the MMD advocated a return to the 1964 constitution, Kaunda appointed a commission to oversee the drafting of a new document. A stalemate eventually developed over the issue as the MMD refused to accept a draft constitution based on the work of the commission.11 An intensive period of negotiations followed leading ultimately to a compromise on a series of constitutional amendments decreasing presidential powers. As I discuss below, some of these involved the judiciary. The amended constitution was adopted by parliament in late July 1991. However, the issue of more fundamental constitutional reforms remained on the agenda. Observers saw the 1991 reforms as driven more by political expediency than the needs of the nation (Mbao 1996). The resolution of the constitutional issue set in motion the campaign for national elections, planned for October 1991. Up to that point, both the High Court and Supreme Court had remained outside of the political fray. However, in the context of the electoral contest, they were asked to decide a number of matters between the MMD and the Kaunda regime. In this respect judges demonstrated a clear willingness to render decisions that undermined the electoral prospects of Kaunda. Judges at the High Court, for example, rendered several decisions or took actions during the electoral campaign that supported the MMD. One decision in February 1991 ruled that government and UNIPcontrolled newspapers had to provide news coverage of opposition party activities. Another ruling, an injunction that was later reversed, required that the national broadcasting company stop censoring paid MMD television advertisements.12 One High Court judge also effectively delayed ruling in a case in

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which the government was attempting to close a bank believed to be financially supporting the MMD.13 This is not to suggest that judges at the High Court were unequivocally supportive of the MMD. Some important rulings went against the opposition.14 Nonetheless, the High Court came to be seen as reflecting and working with the process of political change, rather than against it. So much was this the case that on more than one occasion President Kaunda publicly lambasted the judges and their rulings and claimed that he would root out opposition judges once he was reelected.15 The Supreme Court, on the other hand, garnered a more ambiguous reputation during this period. For example, in support of the government, the Supreme Court overturned a High Court decision that barred the director of the national broadcasting company and editor of a leading newspaper from supervising news reporting. Supreme Court judges, and particularly the chief justice, also failed to respond to the pleas of High Court judges who were publicly attacked by Kaunda. On the other hand, the courts supported the opposition by ruling in favor of two parliament members who switched over to the MMD. While the government sought to expel them, judges at the Supreme Court declared they could continue to sit in parliament. Thus, although the courts were not central players in the process of political change in Zambia, they did play an important and, sometimes, supportive role. This was an important element of the legacy that the judiciary carried into the democratic era.

Politics and Judicial Development: The Chiluba Period Frederick Chiluba and the MMD rode to victory with a decisive margin in elections held in October 1991. Accompanying their ascendancy to power were promises of more far-reaching economic liberalization, constitutional reform, and better governance. Over time, it became clear that these laudable goals would take a back seat to the Chiluba government’s effort to aggrandize and maintain power as an end in and of itself. Although the judiciary initially enjoyed relatively high levels of autonomy under the Chiluba administration, by the end of his first term in office it became the target of a campaign that sought to undermine its potential to interfere with the government’s objectives. This effort to keep the judiciary under the thumb of the executive continued into the second term. Ironically, however, whatever control the executive sought over the judiciary was necessarily incomplete, as some judges of Zambia’s High Court maintained an independent posture vis-à-vis the government. This ultimately contributed to Chiluba’s demise.

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While thin strategic models—focusing on power distribution and electoral market dynamics—offer some insight into the course of events, I suggest that the experience of the judiciary demands attention be given to issues that fall outside of this framework. Government actions with respect to the judiciary are more completely understood with reference to the pattern of signaling evinced by the judiciary and the peculiar systemic features of state weakness and neopatrimonial politics characterizing Zambia. Executive Restraint: The Early Years of the Third Republic Zambia’s courts occupied somewhat ambiguous ground at the outset of the third republic. In principle, an independent judiciary represented an integral element of the dispensation that the MMD had fought for. The 1991 constitution had enshrined judicial independence, adding language that delineated the place of the courts in the democratic order. The Supreme Court, the document read, “should be independent, impartial and subject only to the constitution.”16 Beyond this, the new constitution had decreased the power of the executive over Supreme and High Court appointments, by specifying that parliament had to ratify presidential appointments to the bench. At the same time, however, the guidelines for removing judges remained the same and, as I discuss below, the executive retained control over finances for the judiciary. The political legacy of the judiciary was equally ambiguous. The courts, especially the High Court, had demonstrated independent and prodemocratic tendencies during the Kaunda years and in the period of transition. The court’s role in these respects had aided the MMD and many individuals in the Chiluba administration (including the president himself) when they were in the opposition. However, the courts also carried a tainted legacy from the single-party era. The perception of the Supreme Court at the outset of the third republic, especially within the MMD, was that the institution represented a lingering vestige of UNIP power within the state—one that might interfere with the objectives of those in power and support the opposition that UNIP now represented.17 The MMD had over 80 percent of parliament in their hands. Although they faced some constitutional limits with respect to the kinds of legislation or even constitutional amendments they might enact, this still offered them power to use legislative means to minimize the prospect of court interference with their agenda.18 Although this may have provided some impulse to weaken the courts, this was not the path taken. Instead, the pattern of relations during Chiluba’s first four years of office indicated a general respect for the autonomy of the courts; the government eschewed aggressive interventions to control them or minimize their disruptive potential. This is not to say that government failed

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to intervene entirely. But their efforts reflected responses to opportunities that emerged to increase their influence over the courts, not aggressive efforts to manipulate or undermine judicial authority. This pattern of intervention would change in the wake of signals that the courts might indeed represent an obstacle to the government’s agenda and staying power. The restrained approach is evident in a number of respects. First, the government generally eschewed efforts to either purge the courts of judicial officers or pack the bench with their supporters. This is especially true at the High Court. Judges appointed under Kaunda were left in place and new appointments remained uncontroversial. Opposition members from that time today acknowledge that Chiluba and the MMD never pushed High Court candidates that were unacceptable to them.19 Regarding personnel at the Supreme Court, the story is a bit more complex. As indicated above, one of the dilemmas for Chiluba and the MMD when they took power was the perception that the Supreme Court remained loyal to Kenneth Kaunda and UNIP. The key figure in this concern was Chief Justice Anel Silungwe. Silungwe was appointed to the post by Kaunda in the 1970s, and during the Kaunda years his judgments indicated support of the UNIP regime. It was also widely perceived that Silungwe and the former president were close friends. Although there is no evidence of an orchestrated plot to remove Silungwe, circumstances soon after the MMD came to power presented an opportunity to deal with the perceived threat he presented. In March 1992, the chief justice, along with two other Supreme Court justices, acquitted on appeal the youngest son of Kenneth Kaunda, Kambarage Kaunda, on the charge of murder. The latter had been earlier found guilty on that charge by the High Court. On appeal, the Supreme Court panel unanimously overturned the decision (Mbao 1992). The decision triggered an outcry against the chief justice from the ruling party and other actors. MMD cadres marched on the Supreme Court demanding Silungwe’s resignation. The legal affairs minister declared that the ruling was “rubbish” and alleged that the chief justice had improperly handled the case. Yet criticism also came from quarters that might normally have represented the support base of the chief justice. One High Court judge penned a letter to a leading newspaper criticizing the decision, and the Law Association called on government to establish a tribunal to investigate the actions of the chief justice. In the context of such pressure Silungwe resigned from the bench. He later moved to Namibia where he served on the judiciary. The departure of the chief justice provided the administration a very important opportunity to appoint in his place an individual who was presumably loyal to the government. For Chiluba, the most suitable appointee was High Court Justice Bonaventure Bweupe, who had decided in favor of the MMD during the period of transition and, by late 1992, had rendered two important

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decisions in support of the new government. Yet Bweupe was a problematic candidate on a number of levels. Elevating him to the seat of chief justice from the High Court would have represented a somewhat irregular, though not illegal, maneuver, given the practice of using seniority as a criterion for advancement on the courts. Moreover, other officials in the government did not agree on the choice of Bweupe to replace Silungwe as chief justice.20 Ultimately, it was the deputy chief justice, Matthew Ngulube, who emerged as the compromise pick for chief justice. In turn, Bweupe was elevated to the Supreme Court and took up the position of deputy chief justice. While the president thus achieved some success in staffing the court with his preferred candidate, it is also instructive that the appointment of Ngulube to the top post was not necessarily his preferred option. Thus, while the changes in the composition of the bench in the early part of the Chiluba administration reflected an effort to increase influence over and perhaps create a more friendly bench, it is hard to read much more into these events than that. There is no reason to treat the affair as an example of the gross violation of security of tenure or the packing of the court with supporters—two interventions that represent signal efforts to undermine judicial autonomy (see Bill Chavez 2004). Second, although government had opportunities and the apparent legislative power to undermine judicial authority via institutional restructuring—that is, changing the legal structures governing the power of the judiciary and its relations with other branches—they did not take those opportunities. The clearest example is seen in a key piece of court-related legislation that emerged during this period. The 1991 constitution called for the creation of an autonomous judiciary, yet left some details of judicial relations with other branches unspecified. Because of this, judicial funding remained under the control of the Ministry of Legal Affairs through the first few years of the Chiluba government. Yet pressure remained on government as the press, Law Association, and chief justice called on it to enact legislation to correct this situation. The result was the Judicature Administration Act, passed in late 1994. The primary thrust of the legislation was to create an administrator for the courts, independent of other ministries, whose duties pertained substantially, but not exclusively, to management of funds for the judiciary. As delineated in the act, the administrator is appointed by the president on approval of the Judicial Service Commission. The latter body, a ten-person commission, is charged, among other things, with appointing court staff, officers, and magistrates, and with nominating judges for appointment to the High Court. Although four of the appointments on the commission represent the executive branch (with others split between the judiciary, legal fraternity, legislature, and university), there have been few if any concerns voiced about the body being politicized. Although some initially feared that the creation of such an administrator represented a line of control from the executive to the judiciary, by the time

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that the bill was presented in parliament, such fears had dissipated. Indeed, the press, which is relatively attentive to judicial matters in Zambia, largely ignored the bill.21 To this day, observers claim that the act was a step forward for judicial independence. Finally, in sharp contrast to later periods under both President Chiluba and President Mwanawasa, there was only limited public haranguing of the courts or individual judges. This was true despite the fact that the High Court clearly demonstrated a willingness to side against the government as frequently as not. When government officials did comment unfavorably on rulings or were seen to be obstinate in following court orders, judges themselves offered very vocal and sharp critiques of those officials. Indeed, for the period from 1992 to 1995, the author found no fewer than three reported instances in the Zambian press of judges doing so.22 The relatively restrained behavior of government toward the judiciary over its first four years in office can be explained with reference to two issues. In the first place, it is not entirely clear that the government, especially Chiluba, developed an interest in reining in the judiciary during this period—even though his party held a super-majority in parliament. One of the primary reasons was that the judiciary gave little indication that it would adversely interfere with his power and objectives. When he came to power, Chiluba’s interests with respect to the courts were relatively undefined. As one MMD insider from that period put it, Chiluba “did not have a clear agenda with respect to the courts.”23 In turn, once Chief Justice Silungwe resigned, it was not clear that the courts represented a threat to the administration. This is true despite the fact that a number of important political issues were being decided by the courts. Over the first few years of Chiluba’s first term, judges did little to indicate that they would challenge the president. If we examine decisions rendered by the court during Chiluba’s first four years, the picture of court “signaling” that emerges is twofold. On the one hand, it is quite apparent that judges at the High Court were willing to challenge powerholders, rendering decisions that countered government interests. Consider, for example, the way that “political” cases were decided. These I define as those cases affecting the interests of the government, opposition, or major players in civil society.24 Based on my own estimates, out of fifty-one political cases that came before the courts from 1992 to 1995 a total of twentytwo (43 percent) went against the government. Several of these cases were significant. Decisions in 1993, for example, brought the courts into public conflict with the speaker of parliament, as they ordered him to hand over documents pertaining to the implementation of a state of emergency that year. Court decisions also supported media organizations that had come into conflict with government officials over the reporting of stories. And some elections decisions went in favor of government opponents.

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On the other hand, when it really mattered to the government, the judiciary tended to be deferential to the executive. Tables 3.1 and 3.2 offer examples, showing the distribution of High Court decisions during this period in cases that involved the president and in cases that involved major opposition figures. As these indicate, judges at this level were somewhat hesitant to rule against the president or in favor of the opposition.

Table 3.1 Zambia High Court Decisions, 1992–1995, by Presidential Involvement in Case

President Involved? No Yes

Progovernment

Antigovernment

24 5

21 1

Table 3.2 Zambia High Court Decisions, 1992–1995, by Opposition Involvement in Case

Opposition Figure Involved? No Yes

Progovernment

Antigovernment

15 14

16 6

The signals sent from the Supreme Court—the more important final court of appeal—indicated an even more acute pattern of deference. In the sixteen decisions in political cases that were taken after the Kambarage Kaunda acquittal in 1992 up to the end of 1995, the courts ruled against the government a total of five times. Notably, with the exception of one decision (taken by an individual expatriate judge), upholding High Court rulings against the speaker of parliament in the above-mentioned cases regarding state of emergency documents, the other antigovernment decisions were not in cases of major significance. Table 3.3 draws this out by displaying the distribution of progovernment and antigovernment decisions broken down by the level of government interest in the case. The basis for the distinction between low-interest and high-interest cases is evaluations of the cases undertaken by two Zambian legal experts. Each of these experts were asked to rank each case on a score of 1 to 5 based on their perception of the level of interest the government had in the case at the time it was being decided. Low-interest cases had mean scores

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of 3.5 or below; high-interest cases had scores of 4 or higher. As is evident, the tendency to side with government was quite apparent in those cases where government seemed to have a major interest. In essence, the courts sent few signals that they would threaten government interests, making the status quo with the judiciary acceptable to powerholders.

Table 3.3 Zambia Supreme Court Decisions in Political Cases, 1992–1995

Low-interest case High-interest case

Progovernment

Antigovernment

3 8

4 1

Notably, this earned the judiciary considerable wrath from the political opposition and sectors of civil society. By 1994, Zambia’s leading independent newspaper began to openly question decisions in support of the MMD that were coming from the Supreme Court.25 Critical sentiments were also raised by the Law Association of Zambia.26 And in 1995, opposition figures began to publicly question the integrity and courage of Supreme Court judges, one going so far as to describe the bench as an extension of the MMD government.27 Some observers later recounted that their faith in the independence of the court began to erode during this period. The second, and perhaps less important, issue explaining government restraint concerns the capabilities of the executive. This is especially evident when we consider the failure of Chiluba to place a more preferable choice in the position of chief justice in the wake of Anel Silungwe’s resignation. The downfall of Silungwe afforded the president an opportunity to appoint a chief justice who would likely support the government in decisions that came before the bench. As indicated, Bonaventure Bweupe appeared the best choice in this respect. Yet members of government were divided over who the chief justice should be. Some advocated for the return of an expatriate judge to the post. Others pushed for the deputy chief justice, Ngulube.28 In the end, it was Ngulube, the compromise candidate, who obtained the post. This is not to suggest that the government was wholly ineffective in using personnel controls to influence the bench. The appointment of Bonaventure Bweupe to the position of deputy chief justice later paid off handsomely for the government as he represented one of Chiluba’s key loyalists who allegedly worked to influence cases that concerned the government.29 Still, the ultimate elevation of Ngulube, whose loyalties to the MMD were at least questionable, highlights

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that divisions in the party and government limited the ability of the government to control the judiciary. In this respect, the case offers some support for thin strategic models that emphasize how internal party divisions can undermine government efforts to manipulate the courts.30 Reining in the Courts This pattern of relatively amicable relations with the courts changed dramatically as political life became increasingly judicialized and as the bench signaled that it might shift its progovernment tendencies. The turnkey event that altered relations between the bench and the government was a Supreme Court decision in an important political case in January 1996. The case, known as the Mulundika decision, involved charges against eight individuals who were charged under Zambia’s Public Order Act on grounds that they had failed to obtain police permission before publicly assembling. They challenged their arrest on the grounds that the sections of the act requiring individuals to obtain a police permit in order to hold peaceful assemblies were unconstitutional. In a split decision, the Supreme Court agreed. Important as the decision was, it is also important to understand the larger context in which it was taken. By January 1996, it was clear that Zambia was witnessing the judicialization of many important political questions. Opposition politicians, the press, and civil society were increasingly using the courts to challenge the MMD government. Added to this, 1996 was an election year, during which there would surely be several important elections-related questions moving through the courts. Indeed, at the time the Mulundika decision came out, a very important case concerning which entity would carry out the registration exercise for the 1996 contests was still before the courts. Given all this, it was especially clear to the government that it was important to have a compliant bench. The Mulundika decision undermined government confidence that the judiciary would toe the line. In the period that followed, the government embarked on an aggressive campaign to rein in the courts. This involved a number of different elements. Public badgering of the bench became frequent and aggressive. Two weeks after the Mulundika ruling the legal affairs minister and vice president criticized it in parliament, the former suggesting that the judges were enacting political platforms from the bench. Other MMD voices called for the resignation of the chief justice.31 In the months that followed, government officials became more reckless in critiquing the courts and their decisions.32 The president himself appeared to offer license for such public attacks as he reminded judges in April 1996 that the bench was not immune from public criticism. Such badgering of the judiciary also took the form of legislative branch challenges to the judiciary and its authority. One clear example was a decision by the

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speaker of parliament to declare that two newspaper editors and one columnist had been found guilty of contempt of parliament, notably for an article that castigated the vice president for his speech in parliament regarding the Supreme Court decision in the Mulundika case. Although common-law legislatures have the power to charge individuals with contempt, the move still represented a usurpation of judicial functions by the legislature. As the accused were summoned to parliament, the defense minister gleefully announced that the three would be “jailed without reprieve” and that not even the Supreme Court could help them.33 The editors were then arrested and imprisoned. They were later released by a High Court judge who declared that parliament was not a court and that it was subject to the interference of the court in the exercise of its power. Nonetheless, a clear signal of hostile intentions toward and disrespect for the judiciary had been effectively transmitted. The government also took active efforts to restructure institutional relationships in a manner that placed the judiciary in a subordinate position relative to the executive. One measure to that end was legislation passed in March 1996 that increased executive control over salaries and perquisites for the judiciary. The general impression in the years that followed was that the executive strategically timed salary increases to curry favor with the bench.34 A more deliberate effort in this respect grew out of the government’s program to amend the constitution. As mentioned, the MMD had campaigned with promises that they would complete the lingering task of revamping the constitution. In the latter part of their first term, the government put together a commission to solicit input and draft an initial proposal for constitutional changes. With respect to the judiciary, the commission made several proposals to increase the power and independence of the institution. These included calls for the creation of a constitutional court, language that would have allowed the chief justice (as opposed to the president) to appoint “acting” Supreme Court justices in the event of court vacancies, a clause requiring the president to consult with the Judicial Service Commission when elevating judges from the High to the Supreme Court, and a clause requiring all state organs and officers to assist the courts to protect their independence. In 1995, the government indicated that it would not accept these changes.35 However, their position raised few eyebrows as it did not appear that they were seeking to use constitutional reforms to undermine judicial independence, only rejecting provisions that would have changed the status quo position of the courts. By March 1996, the government’s position had changed from one of preserving the status quo to changing the rules governing judicial relations with other branches. At this time, the government’s draft of the constitutional amendment bill surfaced. Regarding the judiciary, the government’s proposals sought to limit the authority of the institution and give the executive greater control over judges. Proposed revisions included a clause stating that every act

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that the National Assembly passed should be presumed constitutional, and that “no judicial inquiry into legislative motives or into the regularity of the legislative process” could be used to challenge such acts.36 Beyond this, the government sought to increase the power of the president to remove High and Supreme Court justices. Under their proposals, judges accused of “gross misconduct” could be removed by the president, subject to ratification by the National Assembly. Existing rules allowed for such removals (on specific grounds) only after the president had been advised by a tribunal. Donors, opposition groups, and civil society mobilized vociferously against these, and several other, proposed amendments. The Law Association of Zambia, for instance, issued high visibility public statements condemning the constitutional reform proposals as a “recipe for anarchy,” while the leading newspaper condemned them in specific terms.37 Meanwhile, donors, reacting to these and other proposed amendments, threatened to withdraw or withhold funding.38 In the wake of this strong local and donor opposition, the government removed the proposals concerning the judiciary from the constitutional amendment bill, and the basic structure of the judiciary as previously laid out in the constitution was left intact. Finally, the government increasingly relied on “direct approaches” in its efforts to control the courts, targeting judges on an individual basis. On the one hand, this involved efforts to punish judges who were seen as disloyal to government. Chief Justice Ngulube, for example, was stripped of his position as chairman of the Council for Legal Education, a job usually held by the chief justice. Later, allegations surfaced that Ngulube had sexually assaulted a maid in his chambers. The accusations, later found to be a fabrication, allegedly emanated from those within the president’s inner circle as part of an effort to intimidate the chief justice.39 On the other hand, Chiluba’s networks of corruption and patronage afforded a means to influence judges. Chiluba’s own underhanded dealings have been the source of considerable intrigue, speculation, and investigation in Zambia, as he is alleged to have pilfered tens of millions of dollars from the state during his tenure. The “matrix of plunder,” as it was referred to in the news, allegedly involved a complex system where state and sometimes private resources were funneled to Chiluba and his allies and clients. Money allocated to the Zambian Intelligence Services, for example, was apparently deposited in London-based accounts, where it was then disbursed to private accounts, trust funds, and investment portfolios associated with the state elite. Procurement dealings afforded insiders other opportunities to plunder state resources as political elites are believed to have obtained millions of dollars in kickbacks and unofficial commissions. The same can be said of sales of minerals from the government mining parastatal.40 After Chiluba left office, parliament unanimously voted to remove his immunity from prosecution. He was later charged

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with more than two hundred counts of theft of state funds in excess of US$40 million (Taylor 2006). There is a general perception, as well as some evidence, that certain judges not only were the beneficiaries of patronage, but that efforts to bring judges into clientelistic networks increased after the Mulundika ruling. Chief Justice Ngulube himself all but admitted to receiving nearly US$170,000 from a Chiluba slush fund in the UK beginning in 1998.41 The money was apparently offered by Chiluba as a gesture of good will to pay for the education of Ngulube’s children in the aftermath of the rape accusations discussed above. Indeed, one insider referred to the transfer of the money as a way of “regularizing” the relationship between the two after the period of soured relations.42 Beyond this, it is widely believed that Chiluba’s supporters on the Supreme Court were being rewarded for doing the president’s bidding on the court. A relative of one such judge was purportedly one of the managers of the same London account that paid funds to Ngulube. Interviews conducted while he was still in office openly singled out this same judge as among the most compromised by connections to the statehouse during the Chiluba era. Chiluba’s Actions in Theoretical Perspective: State Weakness and Neopatrimonial Politics As indicated earlier, one of the central insights from the Zambian case concerns the ways that the larger systemic features of neopatrimonial politics and state weakness affected the experiences of the judiciary at the hands of executives. With respect to the efforts to control and manipulate the courts under Chiluba, the importance of these features is apparent in two ways. First, while the signaling in the Mulundika ruling prompted the campaign against the bench, the context of neopatrimonial politics amplified government interests in controlling the judiciary. In this respect, the experience of Zambia suggests that polities characterized by neopatrimonial tendencies can turn the expectations of thin strategic approaches on their head. In view of the latter, competitive electoral politics, and the attendant prospects of potentially being out of power in the near future, gives elected incumbents an interest in shoring up judicial independence. Yet such considerations do not necessarily obtain in contexts of neopatrimonial politics where leaders prioritize holding power well above all other objectives. In these environments, competitive elections and the prospects of losing power can actually increase the perceived needs to manipulate judicial (and other) institutions. This is especially true when those institutions are potential arbiters of disputes over the conducting and outcomes of elections—as they were in Zambia. Thus, for Chiluba, the objectives of maximizing and holding power overrode any concern with developing neutral and autonomous judicial institutions that might have served him at some fu-

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ture time. For him, staying in power was the first priority and corralling and enfeebling the judiciary was crucial to meeting that immediate objective. Second, the context of weak state and neopatrimonial politics informed the strategies used by the government in its efforts to control the judiciary. Because the government was operating in this kind of context, certain kinds of strategies that it might have used to control the judiciary were not available to them. For one, the option of restructuring institutional relations in a manner that diminished the prospects for judicial interference with the government and its agenda proved less feasible. As indicated earlier, governments have often relied on such techniques when seeking to rein in potentially threatening judicial institutions, changing the scope of judicial authority, limiting judicial opportunities for review of government actions, and so on (see Tate 1993 and Russell 2001). However, the costs of such efforts can be the alienation of foreign donors and civil society elements concerned with the rule of law. This appears to be one of the central lessons from Zambia’s constitutional reforms of 1996. Although the government initially planned to curtail the court’s authority and change the rules governing relations with the executive, it backed down when it became clear that such maneuvers would estrange foreign donors and other judicial support groups. Moreover, the option of using personnel controls, simply removing disloyal judges and packing the bench with supporters, was not available. Removing judges, especially from the Supreme Court, would likely have been a costly venture. Judges were institutionally protected from such removals, except on grounds of incompetence or misbehavior, and government efforts to bend the rules to dismiss them would likely have been met with hostility by key judicial constituencies. Using appointments also offered limited opportunities. As indicated, appointment mechanisms are effective in situations where there are clear ideological markers in the polity and deep-seated loyalties to parties and the agendas associated with rulers. The former implies that government supporters can be easily identified; the latter suggests that they can be trusted to support current powerholders over the foreseeable future. However, in neopatrimonial contexts ideological markers tend to be weak and instrumental political allegiances tend to prevail. As a result, powerholders are less able to identify loyal supporters to appoint to the bench, and they have limited assurance that such appointees will remain loyal once they are seated. Thus, when the Zambian government sought to increase its power over the bench, personnel controls did not represent the primary means they employed. This is one reason that High Court appointments, and even those to the Supreme Court, have remained quite uncontroversial in Zambia. This does not mean that Zambia’s leaders have eschewed a strategy of appointing and retaining erstwhile supporters on the bench. Indeed, the MMD and Chiluba did precisely that when the opportunity arose. Most notably, Deputy Chief Justice

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Bonaventure Bweupe had his tenure extended by the president after he had reached retirement age and could only continue to work on the basis of a contract granted by the executive. However, such tactics were secondary to others employed by the government. The context of neopatrimonial and weak state politics also opened up avenues to manipulate the bench. One of the operative features of neopatrimonial politics is the opportunity for leaders to use rents and opportunities derived from their positions of power to reward friends and punish enemies. Frequently this leads to the development of dense networks of commerce, corruption, and clientelism, at the center of which are big men within the state. Such networks can of course involve actors within the judicial system that the government leaders wish to control. And to the extent that such networks characterize and are a central element of the political system, leaders have considerable opportunities to target judges with threats or inducements to minimize the prospect of their interfering with the agenda of the ruling elite. As indicated above, in the view of many, it was these personalized techniques that came to represent one of the primary means the Chiluba government relied upon to control the bench. Beyond this, within the context of neopatrimonial politics, Chiluba’s subtle threats and public badgering of the courts were far more significant than they might have been in other contexts. Public critiques of judges, “anonymous” accusations of criminal wrongdoing, and calls for removal have far greater impact in situations where institutional protections for judges are untested and the rules governing political life have a history of being bent, manipulated, and even ignored to suit immediate objectives. One Zambian judge commented in response to a question about legal protections for judges: “Laws? They can change the laws. People can get investigated. They can just create the impression that they can do harm.”43 In this respect, the weak status of the rule of law and the attendant tendencies toward the personalization of power allowed the executive to more effectively badger and threaten judges. The use of such techniques would continue through and beyond the Chiluba years. The Judiciary Tainted In the wake of the government assaults on the judiciary in 1996, key judicial rulings increasingly went in government’s favor. Yet this did not lead to a reduction of government interference with the courts. To the contrary, interference continued, especially as Chiluba faced new challenges to his leadership and sought to further consolidate his position of power. In this context, many Zambian observers of the courts began to lose confidence in the judiciary, believing that a combination of fear, patronage, and personal ties had rendered the bench the executive’s lap dog.

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The most worrying signs for these observers lay in a series of court decisions that emerged in the period following the public assaults on the courts. In April 1996, for example, Chief Justice Ngulube wrote a decision supporting the president in a defamation case against the editors of the country’s most prominent independent newspaper. Some privately suggested that the chief justice went out of his way to hear the case, although this could not be substantiated. Then, in May, both the High and Supreme Court supported the government in a case to determine whether the constitution could be amended via parliamentary vote, as opposed to through a referendum. For the Supreme Court case, the deputy chief justice allegedly deferred the hearing of the case until after the parliamentary vote was cast, which to some degree rendered the decision an academic exercise.44 In October, as Zambia prepared for its second multiparty elections, the Supreme Court also upheld the government’s awarding of a suspicious contract to an Israeli company charged with carrying out the voter registration exercise. In so doing, the courts allowed the use of a voter register that many suspected favored the government. The same pattern persisted after Chiluba and the MMD were returned to power via second elections in November 1996. Shortly after the elections, the opposition challenged the legality of Chiluba’s candidacy (on grounds that he was born of non-Zambian parentage) as well as his election (on grounds that the polls were rigged). The fate of his government was thus handed over to the Supreme Court judges deciding the case. Adding to Chiluba’s insecurities, less than a year after the election, several army officers attempted to overthrow the government. This, in turn, led to the declaration of a state of emergency in the country. As Chiluba’s second term unfolded, and as questions emerged about his plans beyond that term, the government continued efforts to keep the courts in line. Chiluba, for example, used his powers over judicial salaries and perquisites to award the Supreme and High Court justices lavish and controversial raises in 1997, which elevated their pay some 200 percent. These increases, coming only nine months after judges’ salaries had already been raised, were provided as the courts considered key cases affecting Chiluba. Government and its backers also continued to threaten judges at an individual level. Chiluba himself suspended one judge, albeit not on political grounds, in January 1997, and appointed a tribunal to investigate grounds for his dismissal. The judge ultimately resigned. Rumors also circulated about damning cases looming against the chief justice and other justices.45 And in early 1999, a deputy minister claimed that the bench was pro-opposition and that impeachment processes should be made easier.46 In the context of these interventions, the judiciary, especially the Supreme Court, continued to take a generally deferential and supportive line toward the government. In the case concerning Chiluba’s candidacy and election to the

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presidency, for example, the court refused to order that the president take a DNA case to prove his citizenship. They also allowed Chiluba to use government officials as part of his defense team, this despite the fact that part of the case involved Chiluba as an individual, not in his official capacity as president. The final ruling in the case concerning the validity of the 1996 elections contest was also decided in favor of Chiluba. At the same time, other cases seemed to be decided disproportionately against the opposition. One egregious example involved a case, brought by Chiluba backers, seeking an inquiry into the parentage and citizenship of former president Kenneth Kaunda. A panel of Supreme Court judges allowed for the case to proceed to the High Court after suspending a normal three-month period for review of such cases.47 The High Court also held that it had no jurisdiction to inquire into the reasons for the declaration of the 1997 state of emergency and upheld the detention without trial, under emergency regulations, of one accused of involvement in the 1997 coup attempt. The language in the ruling indicated a willingness to defer to executive prerogatives on such matters, as the judge stated: “the president is not obliged to furnish any reason for making a declaration and such inquiry would in my view be ultra vires the powers of this Court.”48 To be sure, whether such rulings reflected pressure on the courts is open to debate, as is the question of whether the courts were correct in law. Yet the rulings had the effect of increasing criticism and decreasing public confidence in the courts. Months after standing up for the bench in the wake of the 1996 attacks, the leading newspaper, The Post, began to run highly critical editorials concerning the judiciary, raising questions about inappropriate contacts between the state house and members of the bench regarding rulings, and even suggesting that some judges were receiving extra remuneration.49 By 1997, newspaper editorials and lead articles spoke openly of the judiciary being “terminally ill” or “bedridden.”50 The paper also ran a tongue-in-cheek poll the following year on who was the “worst judge.” Similarly, opposition politicians and civil society groups openly raised questions about the integrity of the courts and decried the judiciary’s loss of credibility in the eyes of the public.51 Such perceptions were supported by a rich informal transcript concerning the judiciary and its connection to Chiluba’s networks and underhanded dealings. Rumors circulated about regular communications between the state house and members of the bench, where the government was advised of deliberations on the bench regarding key cases and even offered input on decisions. Some suggested that a leading justice and top minister were in regular contact. The former would, allegedly, contact High Court judges who were deciding important cases, while the latter would allegedly make payments to such judges as necessary.52 Other rumors suggested that judges were threatened with having corruption charges brought against them or simply having certain “dirty laundry” exposed in public.

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As indicated earlier, such suspicions of improprieties were not entirely without merit. Chief Justice Ngulube was allegedly receiving payments from Chiluba as of early 1998. In interviews with the author, judges themselves suggested that some of their colleagues were on the take and/or in regular communications with Chiluba’s inner circle during these years. As a result, even judges who were not compromised came to fear being exposed to government by “party people” on the courts for being less than steadfast in their loyalty to Chiluba. As one judge put it, “some judges suspected that their colleagues were close to the executive, and they did not want to voice their opinion for fear of being exposed to the government.”53 Such exposure could invite their being accused on trumped up charges, lead to failures to obtain or renew business licenses, or cause them to be overlooked for appointments to statutory corporations or government bodies where they might earn extra income.54 The end result was a judiciary, especially at the Supreme Court, that appeared unlikely to cause problems for Chiluba. The Problem of Judicial Control and the Demise of the Chiluba Government One of the ironies is that, however controlled the courts may have been, they still retained some capacity for disrupting the political agendas of those in power. This proved to be quite a hazard for Chiluba during the latter part of his second term. Especially at the High Court, judges played an important part in undermining his power and contributing to his final exit from the statehouse. In the wake of a November 1998 court ruling upholding Chiluba’s election to a second term, questions arose about whether he would attempt to amend the constitution to stand for a third term. By 1999 the press was openly discussing the possibility of his doing so, and voices in his party called for him to do so. The trouble, however, was that such an effort by Chiluba and his backers put him at odds with other presidential aspirants in his party. For nearly two and a half years then, through the middle of 2001, the political dynamic in Zambia revolved around a struggle that pitted Chiluba and his backers against members of his own party, along with elements of civil society and the opposition, fighting his efforts to go for a third term. In order to understand the role of the judiciary in this context, it is important to draw a distinction between dynamics at the Supreme Court and those at the High Court. At the level of the Supreme Court, the judiciary remained largely supportive of Chiluba while, at the same time, rendering a few decisions that presumably countered the interests of his government. Consider Table 3.4, which displays the distribution of Supreme Court decisions in political cases from the start of Chiluba’s second term to May of 2001, when it was apparent that he had lost the bid for a third term. The data are based on the author’s own

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record of court decisions. For the table, I exclude individual judge decisions, all of which entailed subsidiary issues within larger cases, and focus on final case outcomes as determined by panels of judges. This table uses the same ranking scheme to delineate government interest as in the previous tables.

Table 3.4 Zambia Supreme Court Decisions, January 1997–May 2001

Low-interest case High-interest case

Progovernment

Antigovernment

5 5

5 2

As is evident, the courts tended to side with government, especially in high interest cases. The two instances where this was not the case involved somewhat peculiar cases, neither of which touched on Chiluba’s fundamental interests. The first of these was the overturning of a High Court decision that denied Kenneth Kaunda citizenship, a ruling almost uniformly seen as the most outrageous in Zambian legal history. The Supreme Court reversal was entirely expected. The second decision concerned the issue of wage and salary increases for civil servants. The situation at the High Court was somewhat different. As indicated, for much of Chiluba’s first term, judges at this level displayed greater willingness to render antigovernment decisions, albeit less so when the president or a major opposition figure was involved in the case. The tendencies during most of the second term were similar. On the one hand, patterns of deference to the executive in key cases remained intact. For the period from 1997 to 2000, for example, of three cases that involved the president, all were decided in favor of government. Judges discussing this period claimed that this reflected the bench being caught up in a culture of pandering to the executive, owing to the power of the president and their attendant fears of him. Yet, on the other hand, High Court judges were not entirely hesitant to rule against the government. If we exclude cases in which the president was involved, over half of the more than thirty political cases heard during this period were decided against the government. Some of the more heralded decisions led to the release of newspaper editors held on criminal charges, freed opposition figures from prison, and allowed for public demonstrations by civil society groups. This independent streak among High Court judges proved critical as the struggle over a third term reached a crescendo. By 2001, the issue of Chiluba’s

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third term consumed Zambian politics as the president’s supporters ramped up their calls for a constitutional amendment to allow the incumbent to stand again. On the other side, a full-fledged social movement had emerged to challenge the push for a third term. Within this context several cases came before the High Court that had implications for which side might prevail in this struggle. Most of these went against Chiluba. For example, in April 2001, a High Court judge ruled against the government in a case where the police sought to ban a rally against the third term during which several ranking MMD officials were to publicly break with Chiluba. Then in May, a High Court judge disallowed the expulsion of more than twenty MMD members of parliament from the party. This allowed them to retain their parliamentary seats as Chiluba backers were still seeking to amend the constitution. Ultimately, the bill to amend the constitution was never presented to parliament, as it was clear the government did not have the support needed to pass it. How can we understand the behavior of the High Court during Chiluba’s second term? In one respect, it may have been that the government lacked effective influence over the High Court. Perhaps because High Court decisions are subject to appeal, government devoted less apparent effort to influence judges at this level than it did with judges at the Supreme Court. Beyond this, dynamics on the High Court rendered control efforts problematic. With respect to the Supreme Court, government needed to only influence the chief justice and other key judges to obtain some assurances that their interests would be protected in court rulings. Things were not so simple with respect to decisions coming out of the High Court. At that level, there were more judges to contend with, sitting in different locations. They rendered their decisions on an individual basis, as opposed to on panels, making them less susceptible to pressure from their colleagues. And the allocation of cases to these judges was often outside the control of the chief justice, delegated to a “judge-in-charge” who may not have been aware of which High Court judges could be trusted with sensitive political cases. The upshot is that government not only felt it less necessary to control the High Court, but also faced more challenges in doing so. Regarding the pattern of decisions in 2001, a further set of issues needs to be considered. Research on judicial behavior in transitional polities clearly indicates that antigovernment decisions become more likely during periods of expected government turnover (Helmke 2002). The reason is that judges, acting strategically, see less reason to curry favor with the executive and, instead, have an interest in displaying their neutrality to those who will soon occupy the seat of government. There is considerable evidence to suggest that such dynamics were affecting the pattern of decisionmaking at Zambia’s High Court. For example, statistical analysis of High Court decisionmaking for the period from 1992 to 2003 indicates that the likelihood of an antigovernment

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decision increased by over 40 percent in the event that it was taken in the year prior to the 2001 scheduled elections (VonDoepp 2006). Indeed, whereas in the previous nine years, eight out of nine High Court judgments involving the president had gone in favor of government, in 2001, three out of four such rulings went against Chiluba. The latter issue reminds us of that even where governments might try to control courts, to the extent that a constitutional framework for the exercise of judicial power remains intact, judges will retain the capacity to render decisions that contradict the interests of other powerholders. To be sure, whether such assertions of authority occur may depend on other factors. Nonetheless, even where judges have been under attack, and even where they appear cowed, they should not necessarily be written off. Judges may appear lapdogs in one context, but may turn against powerholders if and when circumstances permit.

Judicial Politics Under Mwanawasa Chiluba’s dreams of a third term ultimately collapsed in the wake of opposition in society and his own party. Forced to abandon his aims, the stage was set by May 2001 for a presidential contest in which there would be no incumbent and no clear frontrunner. As the situation unfolded, the opposition remained split among groupings of former MMD elites—some of whom broke with Chiluba in the context of his bid for a third term—and longstanding opponents of Chiluba. On the side of the MMD, Chiluba rejected choosing a candidate among the more prominent members of the party (thus alienating several of them) and instead selected Levy Mwanawasa. The latter had served as vice president from 1991 to 1993, but had left the post in the wake of disputes with Chiluba. Given his limited following and somewhat compromised physical capacities (he had suffered injuries from a car accident in 1992), he seemed the perfect candidate for Chiluba, who sought to retain considerable influence via his control of the MMD presidency. Many feared that Mwanawasa would be little more than a puppet of Chiluba. Eleven candidates ultimately contested the December 2001 elections. While the polling was mostly peaceful, irregularities hampered the process. When Mwanawasa appeared headed for victory by a narrow margin, opposition leaders filed a petition at the Supreme Court to prevent the electoral commission and chief justice from announcing a winner until irregularities were investigated. As opposition supporters thronged to the streets, many flocked to the High and Supreme Courts. Some entered the courtroom of the judge hearing the case, forcing him to retreat to his chambers. Police broke up the demonstrators at the courts, but riots, protests, and looting continued in Lusaka. While the judge hearing the petition initially blocked the declaration

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of a winner and inauguration of Mwanawasa, a day later he announced that the courts could not stop the swearing in of the new president. Calm returned as Mwanawasa called on the police to curtail and arrest the protestors. Mwanawasa thus entered the statehouse under unfavorable circumstances. Beyond this, he faced considerable challenges in consolidating his authority once in office. Having won the presidency with only 29 percent of the vote in an election that domestic and international observers criticized as flawed, he commanded little legitimacy or popular support from the outset. Opposition leaders indicated that they would challenge his election in court. Coupled with this, his party, the MMD, lacked a majority in parliament, rendering him vulnerable to interbranch disputes and even impeachment efforts. Finally, Frederick Chiluba and his allies retained control of key positions in the MMD, thus hampering his control over his own party. Paramount on Mwanawasa’s agenda was an anticorruption campaign. Yet this would necessarily conflict with the interests of Chiluba and many of the old guard that remained in those positions. The courts came to figure centrally in Mwanawasa’s ability to overcome these challenges. Mwanawasa and the Courts: Restraint and Interference While Mwanawasa’s approach to the judiciary during his first five years in office offered some similarities to those witnessed under Chiluba, there were also important differences. Perhaps most starkly, Mwanawasa never engaged in an all-out assault on judicial autonomy in a manner reminiscent of his predecessor. Yet while some level of restraint was operative, interference was also apparent. The differences between Mwanawasa and Chiluba did not necessarily reflect the different circumstances they encountered in the party system and electoral marketplace—as thin strategic frameworks might suggest. Instead, two issues stand out. First and foremost is the role played by the judiciary. The courts adopted a relatively deferential posture during Mwanawasa’s first term, giving him less reason to manifestly interfere with them. Notably, when the courts broke from this posture, Mwanawasa himself adopted a very aggressive tone toward them. Second, Mwanawasa proved a more restrained leader in general and less inclined, on the surface at least, to engage in the tactics that characterized his predecessor. Thus, his leadership style may have contributed to his more moderate approach toward the courts. This said, this interpretation deserves to be treated with some level of caution. On balance, Mwanawasa’s leadership style manifested dual tendencies during his first term. On the one hand, he operated as a more principled and purposive leader than his predecessor. He dismantled the patronage schemes of the previous government, launched a highly visible anticorruption campaign, and avoided some of the brutal tactics associated with

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Chiluba. At the same time, he had to play politics and faced an uphill struggle in his effort to secure his dominance of the political order. And in playing the political game, he displayed certain excessive and undemocratic tendencies. Reflecting these tendencies, in interviews with the author, informed observers tended to highlight one of two images of Mwanawasa and his actions toward the judiciary. The first image emphasized the responsible approach that he took toward the judiciary. Not only was public badgering less frequent, but he took steps to promote judicial independence. In July 2002, for example, he raised judicial salaries and improved their perquisites, providing them new vehicles. He also improved retirement conditions in a manner that allowed judges to retire in greater comfort. This had the added effect of decreasing incentives for judges beyond the required retirement age of sixty-five to go on contract with the government to keep them in active employment. Some argued that the latter practice gave judges an incentive to side with government as they neared retirement age. Yet this image is juxtaposed to a less charitable account of Mwanawasa during his first term. While public badgering was less frequent, some public pronouncements regarding the judiciary reflected a lack of respect for the authority of the institution and a willingness to undermine it to suit his political objectives. One troubling incident came in the wake of a High Court ruling regarding Mwanawasa’s effort to appoint several opposition politicians to his cabinet in February 2003. After the judge granted an injunction to opponents of the move, restraining Mwanawasa from doing so, Mwanawasa publicly challenged the judge. Claiming that the ruling was made to embarrass him, he asserted that injunctions could not be served on him and that he was going ahead with the appointments. He then asked the chief justice to meet with judges to ensure that issues that brought the executive into conflict with the judiciary were avoided.55 Opposition parties, the Law Association, and other elements of civil society criticized Mwanawasa for his public attack on the judge and directions to the chief justice, calling it a clear violation of separation of powers and an assault on judicial independence. Still the attack seemed to have its intended effect as days later the judge in question reversed his decision and publicly apologized to the president, the chief justice, and his fellow judges. The subservient tone of the judge led to calls for his resignation and more criticism of Mwanawasa’s actions. The incident was isolated insofar as it represented the only direct public attack by the administration on the bench during Mwanawasa’s first term. However, interference took other forms. In another instance, members of the president’s party thronged to the courts to await a politically important decision concerning an expatriate reporter who had “insulted” the president, creating a climate of intimidation and violence that concerned several judges. Some

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observers also suggested that some Supreme Court justices served to protect government interests on the bench. Indeed, although the Supreme Court witnessed the departure of Chief Justice Ngulube in light of corruption allegations in 2002 and saw the appointment and elevation of several highly regarded judges, concerns about relations and connections between the executive branch and judiciary did not disappear. By 2006, informed observers indicated that certain senior justices were quite loyal to the executive and actively pressured other judges to support government in their rulings. Finally, although no hard evidence exists to confirm such allegations, and although the claims did not circulate to the extent that they did during Chiluba’s term, some interviewees intimated that informal communications remained between the executive branch and judicial officers. A final line of control lay in the larger climate promoted by the administration. Mwanawasa sometimes demonstrated a disregard for the rule of law and other branches during his first term. For example, he publicly commented on court cases, which, under Zambian law, is considered contempt of court.56 In 2004, he attempted to sack the director of public prosecution without following the constitutionally prescribed procedures. In undertaking such actions, he indicated a willingness to denigrate actors and institutions that might challenge his own prerogatives. In this context, his anticorruption campaign offered an added set of tools to rein in potentially uncooperative judges. Judges tainted by the Chiluba administration were some of Mwanawasa’s most loyal supporters, some suggested, because the government could bring charges against them if they failed to support the government. Indeed, in the wake of an antigovernment ruling in a highly visible case, one High Court judge allegedly got word that he was being investigated for corruption. The investigation was ultimately never pursued as the main instigator of the action apparently acted without the approval of his superiors. Yet, the potential vulnerability of judges to such actions was not lost on members of the bench. Mwanawasa’s Actions in Perspective Scholars working from thin strategic frameworks might interpret Mwanawasa’s restrained behavior relative to Chiluba in light of differences in the objective circumstances they faced in their political environments. Electoral results from the 2001 elections indicated that Mwanawasa’s prospects for being removed from power in the next elections were relatively high. This should have given him some interest in leaving intact judicial institutions that could protect him and his policies in the event that he was eventually displaced. Moreover, power was divided between branches and his own party lacked internal discipline, thus limiting his capacity to effectively undermine judicial authority via legislative action.

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While this offers some insight into the issue, in certain other respects it comes up short. To begin with, it is very difficult to suggest that Mwanawasa’s restraint with respect to the bench derived from an interest in preserving and cultivating judicial independence as a means toward the end of protecting himself and his interests in the event that he lost power. There is little reason to believe that Mwanawasa was above the pressures to maximize and maintain power that affect leaders in neopatrimonial contexts. Indeed, some of his actions suggest that power preservation was more important to him than developing institutional mechanisms to restrain future executives. His efforts to illegally fire the director of public prosecution and rejection of constitutional proposals to curtail the power of the presidency serve as prime examples. Beyond this, the judiciary figured centrally in most of the key challenges that faced Mwanawasa during his first term. For example, court decisions touched directly on the status and power of former president Chiluba, who came to be one of Mwanawasa’s central opponents. They also affected the president’s ability to obtain control over the legislature as the judiciary was called upon to determine the legality of the president’s efforts to “poach” members of the opposition to sit in his cabinet. They affected the course of corruption prosecutions against key figures from the previous administration. Finally, the Supreme Court, asked to determine the validity of Mwanawasa’s election to the presidency, held the fate of the government in its hands until it finally rendered a decision in favor of Mwanawasa in 2005. Given this judicialization of politics, court power was of central importance to the survival and fortunes of the president. Why then did Mwanawasa not move more aggressively to ensure court subservience? One issue concerns the signals sent to the president by the judiciary about their willingness to challenge him. From the start of his term of office, the highest rung of judiciary, the Supreme Court, gave little indication that they would be anything but supportive of the executive. Although no major rulings came out during Mwanawasa’s first year in office, in 2003 the Supreme Court began to overturn several High Court electoral rulings that had favored opposition parliamentary candidates. The Supreme Court also upheld the lifting of Frederick Chiluba’s immunity from prosecution, a move that the president had personally advocated before the legislature. Finally, the subservience of the courts was affirmed in the aftermath of the president’s public badgering of the judge who issued an injunction against his appointing opposition members to his cabinet. The relative timidity of the bench in the context of the attacks represents a marked contrast to the behavior of some members of Namibia’s bench who challenged similar executive assaults on the courts. As I will discuss below, the High Court was less deferential on the whole as several important judgments went against the government during this period. The president seemed willing to tolerate this, possibly because the final

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court of appeal had signaled its support. But it is also the case that Mwanawasa did face some clear constraints in terms of limited capabilities and high costs associated with court-curbing efforts. For much of his first term he lacked sizeable and stable majorities in the legislature, thus limiting his ability to undermine (or threaten to undermine) judicial authority via institutional restructuring. Moreover, weak state politics curtailed Mwanawasa’s capabilities in the same manner that they did Chiluba’s. As we saw earlier, donors and civil society helped to check the Chiluba administration’s plans to enfeeble the courts. And while no such steps were apparently contemplated under Mwanawasa, even aggressive public badgering of the courts had potentially high costs for the president in terms of bringing unwanted negative attention from donors, the media, and civil society groups, such as the Law Association. Mwanawasa staked no small amount of political clout on his claim of forging a different, more responsible path than his predecessor. Some suggested that he was especially sensitive to criticism from judicial constituencies given this, as well as his background and international reputation as a human rights lawyer and public official with high levels of integrity.57 At that, Mwanawasa may not have needed such measures to corral the courts. The president’s anticorruption drive, his apparent willingness to attack constitutionally protected officers, and public badgering of one judge all contributed to a climate of fear among judges. And as indicated below, the broader culture on the courts remained one of deference to the executive. In this respect, Mwanawasa likely benefited from the longstanding “big-man” tradition in neopatrimonial polities. Although his control over the legislature was weaker than that of his predecessors, control of the state house provided opportunities to exercise power in a way that minimized the potential for interference from the courts. A clear example of this lies in the potential for executives to influence efforts by anticorruption and prosecutorial agencies. While such agencies may have nominal independence, executive preferences can inform their pursuits. Such tendencies were perceived in Zambia under Mwanawasa, as presidential allies were allegedly shielded from investigations and indictments while opponents were targeted.58 Such an ability to selectively punish or reward individuals offers a line of control over other agencies, judiciaries included. Compliant Courts? If we examine the pattern of court decisionmaking during Mwanawasa’s first term, it becomes apparent that, although the courts experienced less overt pressure, the tendencies exhibited during earlier periods remained intact. At the Supreme Court, the bench remained largely deferential to the executive. Out of seventeen political cases heard at the Supreme Court during this period,

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a total of five went against the government. Notably, none of these represented what might be considered “high interest” cases for the government. Major cases, such as those concerning the stripping of the former president’s immunity, the former president’s prosecution, the 2001 elections, and the executive’s control over the licensing for media outlets, all went in favor of the president. Beyond this, some suggested that some court cases likely to be decided against the president or his allies had a tendency to get delayed—a tactic that presumably reflected a hesitation by judges to decide on cases involving powerful individuals. At the level of the High Court, the patterns were different, although consistent with previous tendencies. On the one hand, there is little question that some judges at the High Court remained willing to challenge and contradict the interest of government powerholders. In 2004, for example, a High Court judge forbade the government from deporting an expatriate columnist who had allegedly insulted the president in one of his newspaper editorials. Another judge ordered the government to implement a media law that would have diversified representation on the body that grants media licenses (the ruling was later overturned by the Supreme Court). Another forbade the government from deregistering a prominent policy NGO that had issued several critical reports of government activities. Despite this, the broader tendency was to support the government. By the author’s count, 65 percent (48 out of 74) of High Court decisions in political cases from 2002 to 2006 went in favor of the government. When close observers of the judiciary privately discussed these trends, a number of themes emerged. First, there was a clear perception that, although conditions were better under Mwanawasa than Chiluba, a climate of fear was still dissuading assertive judicial behavior toward the executive. Judges, in general, were described as “fearful” or “cowed,” while those who rendered antigovernment decisions were labeled as courageous. Some pointed to the prospect of being investigated by anticorruption or other state agents. One judge advised, “the best way to maintain your independence is to keep skeletons out of your closet.”59 Some raised the rape accusations leveled at former Chief Justice Ngulube as an example of other types of accusations that could be used to damage the lives of judges. Others mentioned the case of the previous director of public prosecution who was investigated by a tribunal after the president accused him of improprieties. In this respect, judges and others, drawing on past and recent history, placed only limited faith in the protections against their removal in the constitution. Such concerns were made more acute by Zambia’s very poor economic situation. Judges (and others) do not wish to lose their situations in a society where private sector work would be uncertain for many. “Acting with courage means that you could lose food for your children,”60 said one. When asked why certain judges were able to act courageously, some emphasized that

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judges who had done so had developed an economic base independent of their situation in the judiciary. This made the prospect of their losing their positions less disturbing. Others mentioned job prospects and the desire to be elevated either to the Supreme Court or other positions (such as government commissions) as the source of judicial timidity. “Judges want to be elevated, so they pander to the executive.”61 Those approaching retirement age who sought to continue to work on a contract basis in the judiciary were seen as especially likely to bow to executive interests As the executive controlled such contract appointments this provided an extra incentive to favor the government in key rulings. In short, judges had ample reason to fear the executive and accordingly take the “easy route” of supporting government when deciding political cases. The primary tendency was to do just that. Still, the pattern at the High Court suggests that the judiciary had not broken down as an instrument of accountability. Important rulings still went against the government, suggesting that some judges were still willing and able to challenge abuses of power and thwart the excesses of the government. These instances of assertiveness during the first Mwanawasa term underscore an important point raised above. Despite an apparent tendency to defer to the executive, the courts retained the potential to check and challenge the government, just as they had at the conclusion of the Chiluba presidency. This serves as a reminder that even in environments where there may be constraints on judicial autonomy, to the extent that these institutions remain intact, they can still play important roles in political life.

Conclusion After fifteen years of democratic rule, two factors diluted the judiciary’s potential to serve as an instrument of accountability and rights protection. First, as indicated, fear undermined the prospects of judges challenging the executive. Under both Chiluba and Mwanawasa, judges displayed a pattern of deference to executive power. Second, partially owing to that pattern of deference but also because of evidence and innuendo that judges had been embedded in personal and patronage networks, the judiciary was somewhat compromised in the view of society. This is true despite the fact that Levy Mwanawasa appeared to have attempted to conduct a cleaner administration than his predecessor. And regardless of the actual veracity of the claims concerning relations between judges and political players, to the extent that such perceptions obtain, it becomes harder for judges to build the credibility and legitimacy that can contribute to the independence and vibrancy of their institution. The good news is that, as of this writing, the courts are certainly not “terminally ill,” as some press reports from the late 1990s indicated. The courts

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have retained virtually all of their legal authority and the institutional protections against political interference. Beyond this, many judges—and in all likelihood the vast majority—have their hands clean and are committed to carrying out their constitutional roles as instruments of accountability. And several have clearly shown that they are willing to confront the executive in their rulings. This combination of institutional power and individual commitment leave the potential for the judiciary in Zambia to play a key part in consolidating the rule of law and democracy. Notes 1. See Freedom House (2007). 2. See Phiri (2006: 132) for a review of this period. 3. Nkumbula v. Attorney General for Zambia, April 1972. See Zimba (1984: 121) for discussion. 4. Cases of Chipanga v. Attorney General, 1970, SJZ 179; The People v. The Speaker of the National Assembly, the Honorable R.M. Nabulyato; and ex parte Harry Nkumbula (Dec. 24, 1970). All cited from Chanda (1992). 5. It did this by lowering the number of years an individual was required to have practiced law before becoming a judge. 6. For a review of governance during the Kaunda years, see Phiri (2006) or Good (1988). 7. See Mwanakatwe (1994: 107), Maipose (1996: 62). 8. Author interviews with Zambian legal professionals and former cabinet official, June 2006. 9. See Lombe and Chisata v. Attorney General, Z.R. 35 1978; Kapwepwe and Kaenga v. Attorney General, ZR 248, 1972; Shamwana v. Attorney General, SCZ no. 36 of 1980; Rao v. Attorney General, SCZ no 30 of 1987. All Cited from Chanda (1992: 245–270). 10. Lombe and Chisata v. Attorney General, 1991 ZR 35, and In Re Chiluba 1985. 11. Notably, the government also rejected the recommendations of the commission. 12. The October 31 National Elections in Zambia, Report from the National Democratic Institute and Carter Center of Emory University. See Bratton (1992: 90) and Mwanakatwe (1994: 235). 13. Author interview with judge, August 2002. 14. Most notable in this respect was the High Court decision against two UNIP MPs who sought to switch to the MMD. This was overturned by the Supreme Court. The details of the Supreme Court decision are discussed further on in this chapter. 15. See Maipose (1996: 63). Interviews with judicial officers in August 2002 corroborated this information. 16. Constitution of the Republic of Zambia, Article 91. 17. Author interview with judicial official, August 2002. 18. Under the Zambian Constitution (1991, and as amended in 1996) the legislature has the power to amend the constitution with two-thirds majorities. However, amendments to articles under Part III of the constitution, which deals with protection of individual rights and freedoms, require a referendum on the proposed constitutional amendment. As became clear in 1996, the legislature had the potential to enact consti-

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tutional changes that might enfeeble the courts. Other actions that they might have taken to curtail the power of the courts might have included limiting rights of standing or making it more difficult for citizens to bring litigation against the government. 19. Author interview with former opposition member, July 2006. 20. The Post, July 30, 1997; interviews also suggested that the bar had little respect for him. 21. The Post, December 9, 1994, reported opposition by the Law Association of Zambia. This is the one exception to the otherwise generally subdued discussion about the autonomy bill. 22. See Times of Zambia, October 16, 1992; December 3, 1992; and January 9, 1993. 23. Author interview with former Zambian cabinet minister, July 2006. 24. For elaboration see VonDoepp (2005c). 25. The Post, November 18, 1994. 26. Times of Zambia, November 15, 1994. 27. “Opposition Query the Judiciary’s Credibility,” The Post, April 11, 1995. 28. The Post, July 30, 1997. 29. “Justice Ends with Bweupe,” The Post, May 13, 1996. 30. See especially Bill Chavez (2004) in this respect. 31. Official Verbatim Report of the Parliamentary Debates #103, 5th Session of the 7th Assembly, January 19 through February 29, 1996, Republic of Zambia. See also Transparency International (2003). 32. For example, in February 1996, Minister of Finance Ronald Penza openly criticized a court ruling to award pay increases to civil servants; then in July 1996 MMD MP Patrick Katyoka claimed that the judiciary was linked to the opposition. 33. “We’ll Send Post Editors to Jail, Brags Mwila,” The Post, February 26, 1996. 34. Mwana Bwalya, “Zambia: A Judiciary—Giving Cause for Concern,” ANB-BIA New Supplement, January 1, 1998. 35. The Post, October 3, 1995. 36. Economist Intelligence Unit (1996). 37. See Momba (2004) for some discussion. For press reviews of such statements, see Mukalya Nampito, “Proposals on Judiciary: A Recipe for Anarchy,” The Post, March 20, 1996; “Zambian Lawyers—Tell Us About Withdrawn Clauses,” Zambian News Agency, April 26, 1996. 38. See Economist Intelligence Unit, EIU Country Report: Zambia, 2nd Quarter, 1996, 7–8; “Zambia Donors Express Reservation Over Zambia’s Constitution,” Pan African News Agency, June 5, 1996. 39. The Post, April 8, 1998, and April 22, 1998; several interviews corroborated this view. 40. “Analysis of Chiluba’s Matrix of Plunder,” The Post, June 25, 2002; “Zambia’s Matrix of Plunder,” BBC News Online, December 9, 2003. See also van Donge (2008). 41. “Zambians are Distressed by the Money I Received, says Chief Justice Ngulube,” The Post, June 29, 2002. 42. Author interview with former cabinet official, July 2006. 43. Author interview with judicial officer, August 2002. 44. The Post, May 13, 1996. 45. The Post, January 23, 1998. 46. The Post, January 28, 1999. 47. The Post, January 19, 1998. 48. See the case of Dean Namulya Mungomba v The Attorney General (1997).

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49. The Post, July 8, 1996, and July 10, 1996; see also February 11, 1997, and April 4, 2004. More discussion of corruption in the judiciary appears in Transparency International’s 2007 Global Corruption Report. See Chikalanga, Lungu, and Yezi (2007). 50. The Post, August 27, 1997, and July 30, 1997. See also February 18, 1997. 51. See especially comments by Rodger Chongwe in The Post, February 17, 1998. 52. Author interviews with private lawyers and legal officials, June 2006. 53. Author interview with judge, August 2002. 54. Some judges did have positions on such bodies. The current chief justice, Earnest Sakala, for example, had a position as hospital board chairman during the latter part of the Chiluba years. 55. The Post, February 9, 2003. 56. “LAZ Advises Levy to Respect the Courts,” The Post, November 12, 2002; “Stop Mocking the Courts, Chinyama Tells Mwanawasa,” The Post, August 20, 2004. 57. “Profile: Zambia’s Mr. Integrity,” BBC News Online, August 31, 2001. Mwanawasa was the first Zambian appointed advocate and solicitor of the Supreme Court of England and Wales. 58. See Freedom House (2007: 896); “Levy’s Backtracking Worries Prof. Chanda,” 59. Author interview with judge, July 2006. 60. Author interview with judge, July 2006. 61. Author interview with judge, August 2002.

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4 Informal Ties, Threats, and the Problem of Judicial Control in Malawi

Even more so than in Zambia, Malawi’s democratic leaders have operated in political environments that theoretically should have led them to respect judicial independence. During the ten year rule of Bakili Muluzi and the more recent government of Bingu wa Mutharika, power was relatively widely disbursed and electoral uncertainty high. Both should therefore have had relatively high interests in preserving judicial autonomy and limited capabilities for undermining it in any case. Yet both governments undertook efforts to manipulate the judiciary so that it did not interfere with their aims. Ironically, neither was successful in these efforts. Malawi’s judiciary has remained characterized by a clear willingness to undermine executive interests in its rulings. The analysis of the Malawian case reinforces several of this book’s key theoretical points. At the most basic level, as implied above, the analysis offers further evidence about the limits of conventional thin approaches to judicial politics. Simply put, the patterns of executive behavior with respect to the judiciary in Malawi only poorly corresponded to hypothesized expectations of the thin strategic view. In turn, the effort to make sense of these patterns brings attention to the three factors outlined as central in the earlier chapters: judicialization, signaling, and the importance of state weakness and neopatrimonial politics. The importance of these factors first emerges when we consider why Malawi’s executives took steps to intervene in the judiciary when they did; that is, why they developed an interest in undermining judicial independence. For both Muluzi and Mutharika, the impulse to control the courts was initially propelled by classic neopatrimonial concerns about retaining power. Like Chiluba in Zambia, both leaders were maximally concerned with preserving and extending their holds on power. As such, rather than investing in institutions that might have some utility in the event they were displaced from power 77

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in the future, they needed to control institutions that might stand in the way of their retaining power. Their attention to the courts and desire to manage them, in turn, became necessarily amplified within the context of the judicialization of central political questions and judicial signaling that the courts might indeed interfere with their power. As the judiciary obtained the power to affect the fortunes of presidents, and as judges indicated that they might adversely affect those fortunes, the impulse to control the bench increased. The dynamic interaction of the judiciary with forces in political society helped to determine governments’ perceived need to intervene in the institution. Attention to these factors, particularly Malawi’s neopatrimonial and weak state environment, also helps us to comprehend why government interventions into judicial institutions took the form they did. As was the case in Zambia, the situation of state weakness foreclosed the use of certain techniques of judicial manipulation. This was particularly evident when donors and other international actors helped to thwart efforts to purge from the courts three judges seen to be hostile to the president. Beyond this, the neopatrimonial context encouraged the use of other interventions. During the Muluzi administration, for example, many came to suspect that the president and his allies tried to use informal personal and patronage relations to connect the interests of judges with the executive. Moreover, under both Muluzi and Mutharika, state and nonstate agents serving the executive intimidated judges. Finally, the Malawian case illuminates, in sharp relief, the problem of judicial control that can affect leaders in emerging democracies. Despite the fact that leaders had a clear interest in reining in judicial power, and despite the fact that they took steps to control the institution, the courts continued to take an independent line vis-à-vis executives. Indeed, both Muluzi and Mutharika, like Chiluba in Zambia, experienced considerable setbacks in the form of court rulings that undermined their prospects of retaining power. This chapter begins with a brief historical overview of the experience of Malawi’s judiciary during authoritarian rule and the period of democratic transition. This is followed by a lengthy examination and analysis of the experience of the courts during the presidency of Bakili Muluzi. A second, shorter section analyzes the behavior of Malawi’s current president Bingu wa Mutharika, who at the time of writing has been in power for four and one-half years.

Courts Under the Banda Dictatorship The authoritarian system of Kamuzu Banda was quite different from that of Kaunda in neighboring Zambia. While the latter retained elements of a liberal political order with some role for the courts in adjudicating important political

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and civil liberties cases, the former witnessed the development of one of the most effectively repressive regimes in all of Africa. In this context the courts were both subdued and marginalized. Despite this difference, like its Zambian counterpart, the Malawian judiciary would come to play a major role in both the transition to democratic politics and the developments that followed it. Malawi’s legal system at independence in 1964 was constituted of common law courts, reflective of a liberal constitutional order. At the top of this system was the High Court, beneath it were magistrate courts and local courts (Mkandawire 2003: 33–34). All senior positions within the common law courts were held by expatriates who were encouraged to remain by the new president after independence. A new constitution, enacted in 1966, established a Supreme Court of Appeal, thus removing the previously established right to appeal to the Commonwealth Privy Council (Forster 2001). Although Banda himself encouraged the preservation of the common law court system, that system came into tension with the evolving political order. Part of the tension emerged from perceptions in Malawi that western legal practices were poorly suited to the Malawian context and that more local traditions should be used in judicial proceedings. The president himself very early on indicated that western legal practices were failing to meet Malawian standards of justice in criminal cases (Carver 1990: 31). Reflecting this sentiment, in 1966 the president initiated a commission to examine legal-system reform with an eye to generating better congruence between the western courts and local realities. Beyond this, Banda’s dictatorial tendencies were themselves at odds with the rule of law. Shortly after independence, Banda, never one to tolerate dissent, had come into sharp conflict with several ministers over his policies and authoritarian manner. Most of these were forced to flee the country, while one mustered a small following that unsuccessfully took up arms against the government in 1965. In the context of these events, the party’s youth wing was given legal sanction to arrest individuals and preventative detention measures were introduced. By 1966, Malawi was a one-party state and legal provisions gave the president complete control over the legislature. Other measures to increase presidential powers would follow (see Williams 1978). For a brief period, the courts retained the ability to operate with some level of independence. As David Williams describes it, “judges did not believe that it was their duty to be instruments of government policy and sometimes returned verdicts against the publicly expressed wishes of the president” (1978: 252). Yet the problematic place of the courts, combined with Banda’s authoritarian impulses, soon led to the total emasculation of the judiciary. The turnkey event was the court’s acquittal of several individuals on murder charges in 1969. The murders were themselves of political importance, as local rumors alleged that the government had been behind them as part of an effort to send human blood to South Africa as repayment for a

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loan.1 The acquittals sparked outrage from Banda and his supporters in parliament who were already hostile to the western legal system and its apparent inability to render justice on those perceived to be guilty of crimes. In this context, legislation was drafted and passed that elevated the place of local courts, renamed “traditional courts,” giving them nearly complete jurisdiction over criminal matters. The common law courts (the Supreme Court of Appeal, High Court, and magistrate courts), in turn, were stripped of jurisdiction in capital cases. As customary practices were to be paramount in the traditional courts, defendants were denied rights to legal representation, the right to call witnesses, or the ability to appeal to the common law courts. Traditional rulers, controlled by Banda, played the dominant role in verdict and sentencing decisions (Mkandawire 2003: 34; see also Carver 1990). All four expatriate judges of the High Court, including the chief justice, resigned their positions in protest. Parallel to these legal changes were political developments that consolidated the dictatorial and repressive tendencies of Banda’s regime. By the early 1970s Banda had created one of the most repressive and stable political orders in Africa. In 1971 he received the title of life president and came to exercise complete control over the machinery of government. With the support of the Malawi Congress Party (MCP) and national paramilitary youth organization, the Malawi Young Pioneers, the regime came to effectively control society, foreclosing all avenues of dissent and dealing ruthlessly with any who failed to support the system. Within this context, the traditional courts became the primary legal venue for criminal matters. In this role, they also served as part of the apparatus of repression. Those accused of political crimes were tried in these courts. Indeed, several high-profile Banda opponents, or suspected opponents, were found guilty of treason in these courts, all receiving death sentences. By contrast, the common law courts became the venue for commercial and civil cases. In this respect, they occupied a somewhat curious position in the political system. On the one hand, they were removed from politics. They had virtually no say over constitutional matters given that Banda, not the law, was paramount in the system. Beyond this, they were not formally part of the repressive apparatus. As such, they were not heavily manipulated by the Banda regime and were able to operate with relatively high levels of probity and professionalism, developing legal-technical competence in the matters they adjudicated.2 On the other hand, judges from the common law system did participate in the traditional court system, which required that lawyers or magistrates sit together with traditional rulers in an “advisory” capacity in criminal cases. In this role, some of them participated, albeit in a secondary role, in some of the more iniquitous decisions against Banda opponents. Beyond this, judges, even

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in their limited jurisdictions on the common law courts, “had to align their legal thinking to dictates from on high.” Thus, there was no equivalent to the limited independence and assertiveness that characterized the courts in Zambia under Kaunda. Subservience to executive was required in all matters and judges had to operate with restraint.3 Such patterns of behavior would soon evaporate as the political ground under the Banda regime shifted.

Political Transition and the New Role of the Courts Although Banda’s Malawi appeared immune to the liberalizing trends occurring in other parts of Africa, in 1992 pent-up demands for reform surfaced and set the county on a path to democratic rule. The first manifestation of such pressure came in the form of a pastoral letter issued by Malawi’s Catholic bishops in March that offered a critique of the socioeconomic and human rights situation and called for changes in the political system. When the bishops then received death threats, students at the university rioted in support of them. Less than a month later, Chakufwa Chihana, an otherwise little-known Malawian representative of a regional labor organization, returned to Malawi after meeting with dissident groups in Zambia during which he had openly called for democratic change in Malawi. He was promptly arrested and detained. Then in May, riots broke out in the major commercial center, wherein rioters attacked symbols of the regime and called for Chihana’s release. Days later, donors voted to suspend development aid to Malawi in light of the political and human rights conditions. Over the next few months, major civil society groups began to call for political change. Although the Banda regime initially resisted such calls, in October 1992 the government announced that a referendum would be held in 1993 to determine whether the country should move to a multiparty system. In this context, the courts emerged as important, although not central, players in the political process. Already in mid-1992, a High Court judge had asserted the authority of the judiciary by releasing Chihana on bail, a move previously unthinkable in Banda’s Malawi (Meinhardt 1997). Later that year, a High Court judge overruled a University of Malawi decision to not readmit four students expelled for their alleged participation in disturbances that emerged after the bishops’ letter was released. This growing independence of the courts in support of political change was evident over the following year as the referendum on multiparty politics approached. For example, Chihana was initially given a two-year sentence for his crimes of sedition against the state, itself a relatively light sentence in the Malawian context (Meinhardt 1997: 145). The Supreme Court later reduced this to nine months, a sentence that allowed him to be released just before the June 1993 referendum on multiparty politics.

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In early 1993, another democratic activist, future president Bakili Muluzi, was arrested on charges stemming from his past activities as a member of Banda’s government. He, too, was released on bail and charges against him were later dismissed. When the government attempted to ban two opposition papers, the High Court declared the actions illegal (van Donge 1995: 231; see also Meinhardt 1997). The High Court also declared that a police chief acted illegally when he banned certain activists from speaking at public rallies in support of multiparty politics.4 The referendum of June 14, 1993, resulted in a decisive victory for multiparty advocates. The government quickly announced acceptance of the results, with the proviso that the current government would remain in place until multiparty elections were held. However, the government saw the need to compromise with opposition groups demanding the establishment of an interim government. Thus, in order to oversee the development of a new constitutional order to reflect the democratic dispensation, a National Consultative Council (NCC) was established, composed of representatives of different political pressure groups and certain institutions, such as the University of Malawi. The specific tasks of the council involved developing new electoral laws and procedures and, most importantly, reviewing the constitution with the aim of drafting a new one before multiparty elections. As part of the climate of compromise in the wake of the referendum, parliament was supposed to follow the decisions of the NCC. Real executive power remained in the hands of the president. By the end of the year, parliament had legalized opposition parties, abolished Banda’s life presidency, removed other legal instruments integral to the apparatus of repression, and announced the creation of an electoral commission to oversee elections scheduled for May 1994 (Nzunda and Ross 1995: 9; Mutharika 1996: 209; Venter 1995). In the months before the election, even more fundamental steps toward reshaping the political order began. Most fundamentally, in February 1994, the NCC convened, with the help of a powerful local NGO, a constitutional drafting forum.5 This provided the basis for the development of a provisional constitution that was put in place just prior to the 1994 elections. Although it is widely recognized that this provisional document was drafted in a hurried manner without input from key sectors of society (Banda 1998: 321; van Donge 1995: 236), it nonetheless reflected impulses among key reformers to create both a democratic and a liberal order.6 The document that emerged addressed not only key questions of the basic governing order, but also established a detailed bill of rights and new institutions such as the Human Rights Commission, Office of the Ombudsman, and Law Commission (to cleanse the statute books of Banda’s repressive laws). The constitution was only intended to serve in provisional fashion; however, it ul-

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timately became the basis for the democratic political order. Plans to redraft the document after the 1994 elections resulted in several amendments being enacted in April 1995. The new constitution also sought to entrench the independence of judicial institutions. In this sense, the process of constitutional redesign in Malawi offered a more dramatic reworking of the judiciary than it did in Zambia. It also led to, on paper at least, somewhat more elaborate institutional protections for the judiciary than were enshrined in Zambia’s reformed 1991 constitution. The constitution specifies that the judiciary should exercise its powers “independent of the influence of and direction of any other person or authority.”7 Beyond this, the constitution eliminated the upper echelons of the traditional courts that Banda had used against political opponents (see Mutharika 1996),8 and placed the lower echelons squarely under the High Court. The chief justice is appointed by the president on the approval of two-thirds of the National Assembly, whereas other High and Supreme Court justices are appointed by the president on the recommendation of the Judicial Service Commission. The latter body includes the chief justice and four other members, whose appointment is partially controlled by the president.9 Judges’ security of tenure is protected through the age of sixty-five. The president may remove judges on grounds of “incompetence” and “misbehavior.” However, such removal may occur only in consultation with the Judicial Service Commission, only with the support of the legislature, and only in accordance with the principles of natural justice (i.e., the judge targeted for removal must be allowed to defend herself or himself). Finally, remuneration is under the control of the legislature, with the stipulation that salaries and allowances must be periodically updated to retain their original value. One additional important stipulation in the Malawian constitution concerns the guidelines for amending the document. Certain sections of the Malawian constitution can only be amended by popular referendum, as opposed to through the legislature. Included among these sections are those detailing the establishment of the courts, their independence and jurisdiction, and those concerning appointment, tenure, and remuneration. In this respect, institutional restructuring of judicial authority or relations with other branches, such as that proposed by the MMD in Zambia in 1996, would have been a much more difficult venture in Malawi, requiring a national referendum as opposed to a parliamentary vote. By the time of the May 1994 elections, the judiciary was thus operating under a completely different constitutional mandate that provided for an expanded independent role in the political system. Beyond this, by the time of those elections, the courts had fairly effectively removed any hint of suggestion that they were sympathetic to the old order or the MCP. Just as they had

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in the run-up to the 1993 referendum, the courts continued to assert their authority in the period before the 1994 multiparty contests. The court’s behavior in these respects indicated relative neutrality with respect to the different parties contesting the elections. Thus they refused to give legal sanction to a general strike planned by the opposition to protest the actions of the executive after the referendum. Later, they sided with the opposition in a decision that forbade the police from using roadblocks to search vehicles in the lead up to the elections.

Judicial Politics in Malawi’s First Democratic Decade Within two years of Bakili Muluzi’s election in May 1994, it became apparent that the courts were highly important players in Malawian politics. As the courts were increasingly asked to decide issues that had major ramifications for the distribution and exercise of power, Muluzi and his inner circle developed a relatively high interest in managing judicial power. Thus, as was the case with Chiluba, the interest in influencing the courts derived less from objective political circumstances than from the dynamic interactions between the judiciary and the political arena. Also like Chiluba, as the leader of a weak state in a neopatrimonial context, Muluzi was constrained in terms of the tools available to him to control the courts. Appointment powers provided only limited leverage over the judiciary and efforts to remove uncooperative judges ran afoul of key judicial support groups who could expose and punish the government for such behavior. Beyond this, Muluzi faced additional constraints that placed institutional restructuring, such as that attempted by Chiluba, off the table. Constitutional provisions protecting the courts were more extensive in Malawi, and the legislative distribution of power offered only limited opportunities for undermining the courts by changing the rules that governed their operation and authority. Yet such constraints did not prevent Muluzi and his allies from interfering with the judiciary. On the one hand, powerholders sometimes badgered and even threatened judicial officers. On the other, informal accounts of his time in office maintain that the ruling elite attempted to use personal and patronage networks to influence the judiciary. Certain judges came to appear closely connected to the president and willing to serve the government’s interests on the bench. In this context, much to the concern of the political opposition, the Supreme Court tended to support Muluzi, especially in cases where the power and longevity of the president was at stake. However, the government proved incapable of controlling judges at the High Court and Malawi exemplified the “problem of judicial control” that typified Chiluba’s last years in power. As patronage proved unwieldy and

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ineffective, and as efforts to purge problematic judges were withdrawn in the face of opposition from donors and other important players, the government and its allies relied increasingly on intimidation to deal with the High Court and other perceived opponents. Ultimately, these techniques proved unsuccessful and judges played a key role in undermining Muluzi’s efforts to extend his hold on power. Judicialized Politics and Executive Manipulation During Muluzi’s First Term Bakili Muluzi took control of the statehouse in May 1994 under very different circumstances than Frederick Chiluba did in Zambia only a few years earlier. Whereas Chiluba had thoroughly trounced the incumbent Kaunda with 72 percent of the vote, Muluzi won an effective three-way contest with only 47 percent. Even more challenging, Muluzi’s party, the United Democratic Front (UDF) won only 48 percent of the seats in parliament and initially faced a united opposition bloc in the legislature represented by Banda’s MCP and Chakufwa Chihana’s Alliance for Democracy (AFORD). In time, the UDF obtained a working majority in the legislature by poaching members of other parties. Still, the electoral returns and initial lack of control of the legislature pointed to real vulnerabilities for Muluzi and the UDF at the outset of the democratic era. The judiciary was initially removed from the challenges that confronted Muluzi and the UDF in the early days and was relatively off the radar of the administration. As mentioned, the judges were never severely tainted by the Banda regime and had established themselves as neutral arbiters of politics in the period between the referendum and multiparty elections in 1994. Richard Banda, the chief justice, was generally seen in a positive light as he, too, had participated in the transition process as part of a commission overseeing the referendum and had never been closely associated with the previous regime. Thus, the personnel on the bench were not seen as a threat to the administration. And indeed, when the Muluzi administration had its first opportunity to intervene in the courts via the appointment of new judges to the High Court only two months after obtaining office, it made no attempt to increase the number of UDF supporters on the bench. By one account, Muluzi simply accepted recommendations put forward by the Judicial Service Committee, without even vetting the nominees with the minister of justice or cabinet.10 Notably, two of the judges appointed at this time would later be targeted for removal by the UDF government. Within six months of Muluzi’s election, however, the courts came to occupy a central place in the struggles among the key political actors. Key political questions—concerning the vitality of the opposition, the power of the

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president, the operation of the legislature, and even who would occupy positions of power—found their way into the court system. This judicialization of politics would come to typify political life over the course of Malawi’s democratic history. As one newspaper editorial put it in 1997: A foreign observer arriving in Malawi to view the political scene could be forgiven for wondering where the democratic centre of gravity lies. . . . [While] the political institutions of the country appear to be paralyzed, the High Court and Supreme Court of Appeal look set to fill the vacuum, having been landed with the task of resolving a number of essentially political disputes.11

This situation necessarily increased the interest of the Muluzi administration in having the courts favorably disposed to its concerns. While a few notable political cases were decided in 1994,12 1995 represents the signal year in terms of catapulting the courts to a prominent position in the political system. The key event in this respect was the arrest in January of former president Kamuzu Banda and three leading members of the former regime on charges of murdering four politicians in 1983. Over the course of the year as the “Mwanza” trial proceeded, High Court judges were forced to make a number of critical rulings about bail, evidence, testimony, and court procedures. A substantial portion of these went against the government prosecution team. Banda and the others were ultimately acquitted by a jury in December.13 Simultaneous with the trial and in the period following, the courts began to hear an increasing number of politically important cases. Judges were asked, for example, to determine the legality of efforts to seize properties of the former leader. One of the more central cases in this respect, the “Press Trust” case, concerned the status of an economic conglomerate that controlled nearly 40 percent of the Malawian economy. Although this was controlled by Banda and the MCP, legislation passed in 1995 stripped them from ownership, placing the company in public hands—a move that financially enfeebled the former leaders. Seven months later, a High Court judge deemed the legislation illegal, returning ownership to the MCP and Banda. The courts also became involved in disputes over parliamentary by-elections, which were of great importance given the narrow margin of the government’s majority in parliament. And the Supreme Court was asked to rule on appeals that had direct bearing on the strength of the opposition and the power of government and the president in particular.14 The ruling elite’s initial approach to the courts in this context was somewhat unsystematic, but not without direction. On the one hand, the government eschewed efforts to alter institutional arrangements in a manner that enfeebled the courts and never manipulated personnel choices for the bench—either purging

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the courts of opponents or packing them with erstwhile supporters. On the other hand, the available evidence suggests that there were efforts to interfere with the bench, albeit in a manner that was consistent with the neopatrimonial context. For example, informal accounts suggest that political insiders tried to influence the judiciary via personal and informal connections with judges—that is, cultivating and working through loyalists on the bench in an effort to obtain favorable decisions. As rumors of such efforts began to circulate, the chief justice became a source of concern for the opposition and others involved in legal circles. Owing to his ambiguous past and generally supportive posture toward democratic reform, the chief justice’s partisan inclinations were not readily apparent at the start of the democratic era. Yet not long after Bakili Muluzi took power, some began to fear his ties to the administration. One of the first troubling signs emerged in late 1995, during the period when Kamuzu Banda and others were being tried in the Mwanza murder case. At this time, a letter from the chief justice to the president was leaked to the press. In it, the chief justice asked that he (as well as future chief justices) receive the same external allowances granted to government ministers, concluding the note with the phrase “your obedient servant.” The chief justice then apparently retracted the letter when he realized that similar emoluments had been requested of parliament in a request for improved conditions of service. Yet both the request, which bypassed the legislature (which has authority over salaries and allowances for the judiciary), and the tenor of the letter led the opposition to call for his resignation. The chief justice survived such pressures, particularly as many rallied to his defense claiming the opposition demands were overblown and partisan. Over time, more stories surfaced concerning executive interference and connections with senior judges. In 1997, for instance, a letter was leaked to the press in which a High Court judge allegedly complained to the chief justice about his interference in the highly important case concerning the legality of the Press Trust Act. The letter suggested that the chief justice not only was willing to interfere with High Court judges deciding politically significant cases, but was in contact with the administration over such issues: In the first instance, your Honour, you called me to your office. You told me that you had been approached by a “top government official” who was worried that he heard that I was going to give the case to the MCP. . . . Your Honour made statements which showed that if that was the line I was to tow (sic) it was depreciated. . . . I want to state, however, that such assertions are detrimental to good judgment.15

The publication of the letter led some to call for the chief justice’s resignation.16 Notably, in interviews conducted by the author, one other High Court

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judge reported being contacted by a more senior colleague, who expressed concerns about the judge’s decision in a politically important case.17 Neither the veracity of this account, nor authenticity of the above-mentioned letter could be verified. Beyond this, concerns surfaced that senior judges benefitted from government patronage. For example, opposition figures reported hearing rumors of judges receiving material rewards during the period when the Supreme Court was hearing an appeal of the Press Trust decision.18 The ruling favored the government, financially enfeebling the opposition MCP. In 1997, an independent consumer group sponsored by USAID conducted a study of the lucrative sugar trade in the country, raising further concerns. In an effort to liberalize the sugar market in 1996 the multinational firm Lonrho had obtained authority over the allocation of sugar distribution quotas. However, the UDF government, and Muluzi in particular, remained heavily involved in determining who obtained such quotas, in many cases directing Lonrho’s allocation. Ultimately, the report claimed, the trade was controlled by the political class, with upwards of 60 percent in the hands of the president himself. Included on the list of distributors were individuals of the same name and home areas as the chief justice and his wife.19 Without naming the chief justice specifically, the opposition press responded to the revelations by decrying the “corruption taking place among the custodians of the law.”20 Later, the wife of the chief justice, herself a successful businesswoman and acclaimed voice for women’s empowerment, came to appear connected to Muluzi. In the mid-to-late 1990s she was appointed by the president to chair a large government agricultural marketing and development parastatal. According to press reports, her company allegedly profited when it was one of a handful that received government authorization to sell surplus maize.21 Later, she became director of women’s affairs for the UDF and a minister under Bingu wa Mutharika. These kinds of alleged connections between powerholders and the judiciary extended to lower-level members of the bench. News stories in 1996 indicated that one local magistrate had engaged in secret meetings with defense lawyers in an effort to release on bail a UDF official who had been accused of destruction of opposition party property.22 The same magistrate later obtained a position on the High Court where he became one of the more consistent supporters of the government. In another case, concerning the legality of a sitting of parliament in the context of an opposition boycott of the legislature, a High Court judge was reported to have met with the attorney general the night before a key decision to receive “fresh submissions.” The case was then decided in favor of the government, using an ambiguous “doctrine of necessity” that, in the view of the judge, allowed the legislature to meet even in the absence of a parliamentary quorum.23

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Beyond the strategy of cultivating and working through loyalists, members of the government also engaged in public badgering and criticism of judges who failed to support their interests. Whether this represented a systematic strategy on the part of the government or simply reactions to antigovernment rulings is open for interpretation. Nearly all of the government action in these respects came as reactions to antigovernment rulings that directly affected the power and prospects of those holding power in the executive and legislative branch. Yet the record suggests an effort, even if uncoordinated and reactive, to confront judges who were deciding cases against the government. In the wake of antigovernment rulings in the Mwanza and Press Trust cases, government ministers described presiding judges as ignorant and lacking in ability and wisdom.24 Later, in the wake of a curious 1997 High Court ruling that declared that members of parliament could not hold positions as government ministers, Muluzi himself criticized the judiciary for its interference in political affairs. In turn, the judge on the case, who had by then developed a reputation for his antigovernment leanings, became the specific target of attacks by ministers and MPs.25 One UDF MP introduced a motion calling for his removal. However, in that context, the program for removal never went any further than that. The Supreme Court eventually overturned his decision in any case. The approach taken by the government in these respects appears somewhat restrained, but is nonetheless indicative of a deliberate effort to influence the judiciary. The restraint can be understood with reference to two issues. On the one hand, there is little question that the government lacked the capacity to engage in more dramatic interventions to rein in judicial power. Institutional restructuring of the courts, in a manner attempted by the Chiluba government in Zambia, would have required either two-thirds support of the legislature (which the UDF did not have) or more likely, given constitutional stipulations, a national referendum on constitutional changes. Court packing and purging was also not a very viable strategy given protections afforded to judges and, perhaps more importantly, limits on government abilities to identify and ensure the loyalties of those appointed to the bench. It is indeed somewhat striking that during the Muluzi administration High Court judges appointed by his government were no more likely to decide in his favor. This is even true of judges appointed during the latter part of his term (see VonDoepp 2005c, 2006). On the other hand, the government likely took some comfort in the tendencies at the Supreme Court, which overall seemed to be supportive of government interests. As a former government official put it, “we had confidence in the Supreme Court and took comfort that they would decide fairly.”26 This allowed them to tolerate the behavior of High Court judges who sometimes ruled in opposition to government interests.

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In these respects, the experience of the courts during Muluzi’s first term suggests both the utility and limits of thin strategic approaches to judicial autonomy. Given objective circumstances on the ground (high levels of power dispersion and high electoral uncertainty), such approaches would have likely predicted a restrained approach by the Muluzi administration. Government should have had an interest in cultivating the independence of the courts as a means to protect their future interests, and they would in any case have lacked abilities to intervene in the courts to effectively undermine their independence. Yet the record suggests that this is only partially correct. It is very hard to infer that the Muluzi administration was restrained with respect to the courts owing to considerations of the future utility of judicial institutions. Judicial institutions affected key issues concerning the power and longevity of Muluzi and his allies. And the clear lesson from Malawi was that being out of power could place both health and livelihood at risk. As such, they had every reason to seek to influence the courts. Where the thin approach appears most correct is in highlighting how the power distribution in the system limited the choices available to the Muluzi administration. Yet, at that, it needs to be remembered that the government was not as “restrained” as the thin approaches might have predicted. The alleged contacts between judges and the administration suggest that the ruling elite relied on the opportunities for influence afforded by the neopatrimonial context. In this sense, both the nature of government interests in the courts and the strategies they ultimately adopted reflected the neopatrimonial setting as much as they did the objective circumstances highlighted by the thin approaches. Muluzi’s Problem of Judicial Control: The High Courts vs. Supreme Courts The behavior of the courts during the first term suggested that the government’s efforts vis-à-vis the judiciary were successful in a limited but important respect. As indicated, the Supreme Court largely remained supportive of the administration. The pattern of decisions in political cases during the first term is provided in Table 4.1. As with the material in Chapter 3, these data are based on the author’s own records of court decisions. As in that chapter as well, cases are distinguished on the basis of whether they represented highor low-interest cases for the government, as designated by two informed observers of the courts in Malawi. As is evident, while the court’s decisions as a whole were balanced between the government and its opponents, high interest cases tended to go the government’s way. Notably, a number of these decisions overturned High Court rulings that had represented initial victories for the opposition. The most

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visible case in this respect was that involving the Press Trust. The two instances where the Supreme Court decided against the government were, first, the Court’s rejection of an appeal of the acquittal of Kamuzu Banda and others in the Mwanza murder case, and, second, a decision that overturned a parliamentary decision to suspend the payment of MP salaries and party funds to the opposition after the latter had boycotted parliament.27 Table 4.1 Malawi Supreme Court Decisions in Political Cases, May 1994–May 1999

Low-interest case High-interest case

Progovernment

Antigovernment

3 6

6 2

At the High Court, the situation was quite different. In sharp contrast to Zambia’s High Court judges during the Chiluba period, Malawi’s judges were anything but deferential to executive interests. During Muluzi’s first term, nearly half of the decisions in political cases went against the government.28 At face value, this is not dramatically different from patterns at the Supreme Court. However, analysis of the data reveals that High Court judges were no more likely to decide in favor of government where government interest was elevated. This was true even in those cases in which the president himself was involved. Judges were also not hesitant to rule against government in cases where key opposition figures were involved. Not only were judges more assertive, but they also appeared to be more definitively partisan in their decisionmaking, a pattern that was not at all apparent among their Zambian counterparts. Analysis of High Court decisions for all but the latter six months of Muluzi’s time in office indicates that judicial decisionmaking reflected the ethnoregional identities of judges, which tended to mirror party identities during this period in Malawian history. Judges from southern Malawi, the president’s home region, tended to side with the government; those from the north, an opposition stronghold, tended to side against it, albeit less dramatically. Beyond this, the analysis indicated that High Court judges who rendered large numbers of antigovernment decisions in the past were more likely to render antigovernment decisions in current cases. Malawian judges thus showed more definitive pro- and antigovernment tendencies (VonDoepp 2006). Although a complete analysis of these patterns is outside the scope of this work, in other work I have suggested that the more assertive and independent

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tendencies among Malawian judges, relative to their Zambian counterparts, reflected two issues. First, judges had both opportunities and incentives to act independently vis-à-vis the government given the nature of the political context in which they were situated. This context was characterized by relative uncertainty over how long the government might remain in power, thus decreasing the incentives to support the incumbents. Moreover, institutional and political conditions undermined the capacity of the government to punish judges who rendered antigovernment decisions. Removing judges required cooperation of the legislature and executive (unlike Zambia), and government controlled the legislature only by thin margins. Second, Malawi was characterized by somewhat more rigid partisan affiliations, rooted in ethnoregional identities. This contributed to more visibly identifiable pro- and antigovernment tendencies among judges (VonDoepp 2006). These tendencies on the courts were, of course, not lost on the key players in Malawian politics. Opposition members took solace in the fact that High Court judges displayed a tendency to side against the government, even in those situations where government interests were at stake. When confronted with setbacks at the hands of state institutions, they frequently turned to the courts to try to remedy the situation. As one MCP official put it after by-elections in 1997 that were, in his view, mismanaged by the national electoral commission: “The Electoral Commission has failed. . . . We believe that the Commission is not independent. Therefore we will go to the court where we are assured of judicial independence.”29 Of course, such expressions became less frequent as the progovernment tendencies on the Supreme Court became apparent and as stories came out about collusion between the executive and judicial officers. Indeed, by the middle of the first term, many key opposition figures began to lose faith in the independence of judges at that level.30 Meanwhile, although government found frustration in High Court rulings, it found comfort in the supportive tendencies at the Supreme Court. Judicial Politics and the 1999 Elections The onset of preparations for the 1999 elections ushered in an especially contentious period in Malawian politics, in which the courts were centrally involved. While political life lacked congeniality during the first four years of Muluzi’s rule, the situation was relatively free from violence and manifest threats to political stability. By the start of 1999, however, the situation had changed. The roots of the increased tension lay in the twin dynamics of an incumbent government that was highly vulnerable to electoral displacement, and an opposition that had lost faith in the prospects for a free and fair election. For Muluzi and the UDF, the 1999 electoral contests presented a considerable challenge. The reality of Malawi’s ethnoregional politics at the time,

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and the fact that he and his party were seen to represent only one of the country’s three regions, meant that he was vulnerable to displacement in the event that an opposition ticket could unite the two other regions against him. The electoral returns from 1994, giving him a plurality but not a majority of the vote, served as testimony to this. Well before the elections, it became apparent that an opposition alliance might emerge. To win the elections then, the UDF would have to ensure that the playing field was favorably tilted in its favor. One step toward that end was the appointment of a new Electoral Commission eight months before the contest. Emerging as chairman was a High Court judge, William Hanjahanja, a staunch government supporter. His decisions would later become the object of considerable criticism by the opposition, civil society, and donors as he took actions that clearly favored the incumbents. He was ultimately forced to resign prior to the elections, being replaced by a Supreme Court judge presumed to favor the UDF. On the part of the opposition, while the numbers seemed to work in their favor, they still entered the 1999 campaign with frustration and suspicion. In the years preceding, government actions, often supported by judicial decisions, had enfeebled the MCP to the point that they lacked resources to effectively finance a campaign and party organization. The appointment of Hanjahanja to the head of the Electoral Commission increased their concerns. Hanjahanja had rarely ruled in favor of the opposition and was tainted by his ruling in the above case in which he was thought to have connived inappropriately with the attorney general in developing his ruling.31 Furthermore, opposition distrust of the senior justices had increased considerably by 1999 in the face of decisions against their interests and rumors of connections with government. Two months before the election, members of the opposition openly claimed that the Supreme Court was conniving with the government in efforts to undermine their electoral prospects.32 In the event, the courts became deeply involved in the conducting and ultimately the resolution of the 1999 elections. In the lead up to the contests, the High Court continued to show its trademark willingness to balance decisions against the government with decisions in its favor. A High Court judge, for example, ruled against Hanjahanja’s Electoral Commission when the latter declared that joint tickets between opposition parties were not allowed, a decision that could have undermined the entire opposition strategy of uniting against Muluzi and the UDF. The courts also extended the date of the elections in order to accommodate a longer campaign period when the registration exercise took longer than anticipated. Yet the court also ruled in favor of the government in a key decision where it refused to order the national broadcast company to balance media time between the parties contesting the elections, as required by law. While the polling itself was peaceful, the announcement that Muluzi had won again brought Malawi to new levels of tension as the opposition refused

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to accept the legitimacy of Muluzi’s election. Yet lacking recourse to other strategies, the opposition chose to challenge the election of Muluzi in court. Over the ensuing year, a prolonged legal battle ensued, managed substantially by British attorneys that both sides hired for legal counsel. Given questions about the independence of the Supreme Court and especially given the costs of the British attorneys hired to try the case, the opposition was itself not wholly united behind the strategy. Ironically, as the case was still pending, an opposition leader, and a key party to the case, penned a letter to international donors decrying the lack of judicial independence in the country.33 Just weeks before the ruling, unsubstantiated allegations surfaced of secret communications between the attorney general and the chief justice, where the latter was asked to keep the former advised of developments in the case.34 The High Court ultimately declared Muluzi the legitimate winner of the elections. The Supreme Court upheld the ruling later that year. Opposition faith in the highest court in the land now deteriorated to a low point. The Courts and Muluzi’s Quest for a Third Term With the resolution of the elections case, the political dynamic changed considerably in Malawi. During the first term, politics revolved around machinations among the three major ethnoregional parties, including Muluzi’s UDF, as each sought to gain the upper hand with respect to controlling parliament and achieving victory in electoral contests. By mid-2000, the game began to change. The proximate reason for this was Muluzi’s goal of extending his hold on power beyond his second term, which the constitution proscribed him from doing. It was in this context that Muluzi’s need to corral the judiciary, and particularly the High Court, became especially amplified. The aggressive behavior of the administration toward the courts from 2000 to 2003 can be understood in this light. As is the case with other phases of Malawi’s democratic history, attention to this period helps to illuminate the limitations of thin theories and the attendant need to consider the role of the larger systemic features of state weakness and neopatrimonial politics. As had been the case in the preceding period, power remained effectively disbursed, electoral uncertainty was high, and, given term limits, so too was the likelihood of Muluzi being out of power in the medium term. Yet rather than invest in and cultivate judicial independence, the administration took a very different approach. The neopatrimonial impulse to retain power drove interests toward the courts and the government sought to control and render docile judicial institutions that presented possible obstacles to its goals. Yet Muluzi’s options with the courts were quite limited. Partially as a result of institutional conditions, but also because of the environment of state weakness, Muluzi lacked recourse to court-controlling

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strategies that leaders in other contexts have relied upon to manage judiciaries. In turn, he and his allies relied on techniques that were more suited to the neopatrimonial context. Ultimately, the government’s efforts in these respects failed. Illuminating the problem of judicial control that can afflict leaders in such contexts, High Court judges continued to make rulings that contradicted his interests. Muluzi’s quest for a third term placed two new demands on his administration. In the first place, it required that he effectively manage potential opponents within his own party. While the presence of other powerful and ambitious actors was tolerable during Muluzi’s first term, in his second term they represented a potential challenge to his maintenance of power. Second, Muluzi needed to consolidate control of the legislature because he needed two-thirds support of the body in order to amend the constitutional provision regarding term limits. Although this represented a more challenging task than his first term goal of retaining a majority within the house, splits in the opposition parties facilitated his efforts. It was of prime importance to Muluzi that the courts not interfere with his efforts on these fronts. By 2000 it was fairly clear that the Supreme Court was inclined to support the executive. The High Court, however, was more of a challenge. Judges at that level had already displayed a far more independent streak. Moreover, it soon became apparent that High Court judges would not hesitate to interfere with the government’s efforts to undermine opponents and garner greater control of parliament. Even though High Court decisions were subject to appeal at the Supreme Court, they nonetheless could represent real setbacks for the government in the form of short-term defeats and delays to their efforts. As the High Court signaled that it could represent a very real impediment to the ultimate goal of winning a third term for Muluzi, it became the target of aggressive court-curbing efforts. The story of the government’s efforts, and ultimate failure, to rein in the High Court begins with a High Court decision in September 2000 that stayed the suspension of a prominent opposition figure from parliament. In response, the speaker of parliament, whose authority was directly challenged by the ruling, threatened to call the judge before the committee on public appointments, adding that the legislature could dismiss the judge.35 When the speaker then appealed the ruling to the same judge, the judge again ruled against the speaker, adding language reminding that the authority and even the internal operations of the legislature were necessarily circumscribed by the constitution.36 Although the speaker again threatened to call the judge before parliament, little more immediately came of the situation. In the aftermath of these events, High Court judges continued to issue significant antigovernment rulings. One judge ruled against the efforts of progovernment municipal officials to interfere with opposition rallies. When

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those officials ignored this, several key figures in the UDF were found guilty of contempt of court. Judges also released on bail opposition politicians who were arrested on dubious charges. Finally, the courts continued to frustrate government efforts to remove opponents from parliament. By October 2001, leading members of the UDF, including the attorney general, began publicly lambasting judges for interfering with parliamentary affairs.37 Another minister accused judges of being corrupt.38 In turn, UDF rank and file MPs set up plans to pass a series of motions advising the president to impeach three judges seen to be especially hostile to government. As word of the impeachment motions came out, a number of advocates came forward to challenge the UDF and government. Elements of civil society and the Law Society of Malawi called on parliament and the president to withdraw the motions. A High Court judge issued an injunction barring debate on the motions, and the national association of judges and magistrates allegedly threatened to close the courts if the legislature proceeded with the plans.39 The chief justice, meanwhile, called on the speaker of parliament to withdraw the motions and allow the Judicial Service Commission to handle the matter.40 Donors echoed the chief justice’s requests and issued statements expressing concerns over the matter.41 While the speaker initially agreed to hand matters over to the commission, when it appeared that the body would not begin formal proceedings for another month, members of the ruling party went ahead with plans to push for impeachment. Indeed, steps began to be taken to also target a fourth high court judge (the same who had issued the injunction against parliament debating the motions), while rumors indicated that the chief justice himself would be encouraged to retire.42 Although the latter steps never materialized, the UDF, backed by one faction of the MCP in parliament, nonetheless ignored the injunction against debating the motions. With key members of the diplomatic community sitting in the public gallery, parliament then passed the motions calling on the president to impeach the three judges. The passing of the impeachment resolutions by the legislature, a move that likely would not have occurred without President Muluzi’s approval, formally placed the ball in the hands of the president. Voices from civil society and the international community implored the president to ignore the petition.43 Constitutionally, judges could only be impeached in consultation with the Judicial Service Commission (along with support of the legislature). Accordingly, Muluzi asked the commission to undertake investigations and offer advice on the matter. Yet in the wake of this move, international pressure and scrutiny on the Muluzi administration increased. As the Judicial Service Commission prepared to conduct hearings with the judges on the matter, a team from the International Commission of Jurists arrived in the country to

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investigate the situation and observe the proceedings. Their report, issued in mid-January 2002, generally critiqued the entire process.44 The British embassy raised concerns, and the issue allegedly came up in meetings between President Muluzi and Overseas Development Minister Claire Short while the former was visiting London.45 Concurrently, the Danish government removed its aid mission to Malawi and cut aid programs, citing, among other things, the government’s attempts to limit judicial independence. Donor and international attention to the issue continued over the following months as the Judicial Service Commission completed its report on the issue and the stakeholders awaited Muluzi’s decision. While the report was not made public, the commission apparently highlighted that there were shortcomings in the procedures for dismissal used, especially with respect to adherence to the principles of natural justice.46 In early May, just weeks before an investigative team from the International Bar Association was scheduled to arrive in the country, the president “pardoned” the judges of the charges against them because he had “decided to be lenient.”47 Many observers of these developments suggest that international pressure was critical for the favorable outcome that ultimately emerged. As Edge Kanyongolo puts it, referencing the pressure of both foreign and domestic groups: “It is hard to imagine that the president would have willingly gone against the wishes of the majority of his party’s Members of Parliament had there been no such external pressure on him (2004: 27, emphasis mine). This point was corroborated in several interviews. Others suggest, however, that the language of the Judicial Service Commission report, indicating an absence of adequate procedures to ensure natural justice, would have made any removal from office by the president subject to challenge in court.48 In all likelihood, both factors were important. There is no doubt that donors were indicating that there would be potentially high costs for such interference with the judiciary. At the same time, the Judicial Service Commission, whose meetings had also been closely monitored and reported on by international bodies, certainly did not clear the path for Muluzi. The failure to purge the High Court of Muluzi’s opponents illuminated the limited ability of the government to use personnel controls to rein in the courts. This would become even more evident as the second term progressed. For example, a subsequent attempt by the government to second one of the judges to the national university also failed in the face of opposition from the judge himself. Moreover, when Chief Justice Richard Banda ultimately retired in late 2002, he was not replaced by a judge who might do Muluzi’s bidding on the Supreme Court. Instead, Banda was replaced by Justice Leonard Unyolo, a judge with a sterling reputation for impartiality and integrity. The fact that the appointment required two-thirds support of

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the legislature necessitated cooperation with one faction of the MCP that viewed Unyolo as an acceptable choice. Outside of these formal and public efforts to influence the courts, as in earlier periods, stories circulated about government using informal and personal exchanges to manage the judiciary. Some judges and their spouses were actively involved in commercial activities, ranging from scrap metal supply companies to trading and real estate ventures.49 Although there is no hard evidence to confirm it, some suggested that these companies were patronized by either government bodies or companies owned by members of the ruling inner-circle.50 The spouse of another judge purportedly obtained a position on a government-appointed parastatal board.51 Beyond this, in the period after Muluzi left power, well-connected individuals alleged that administration insiders had contacted court officials to discuss cases and had offered material favors to justices and their families.52 The stories of these practices are utterly consistent with the larger image of neopatrimonial governance under Muluzi. Corruption was reportedly quite widespread during his time in office as ranking officials were allegedly given license to pilfer and garner benefits from their positions while in office. Failure to deal with graft contributed to the withdrawal of substantial amounts of foreign aid in 2001. After he left office, anticorruption officials estimated that upwards of US$93 million was swindled from the government during his term.53 On top of this, it needs to be remembered that Bakili Muluzi was, and remains, one of the biggest businessmen in Malawi whose companies have been involved in banking, commercial real estate, broadcast media, transportation, construction, and agricultural inputs. While in office, he also allegedly benefited from funds provided by Arab governments and businesspeople.54 He thus had ample opportunities to send business in the direction of his allies and substantial largesse on which to build political support. By the end of his time in office, Muluzi was the sole financier of the UDF, and stories of his dispensing “brown envelopes” full of cash to clients now has near legendary status in Malawi.55 Other benefits allegedly disbursed included positions on commissions and parastatal boards, loans or collateral for credit, and opportunities to travel abroad on government business. Muluzi and his associates were also rumored to have regularly contacted opponents and civil society actors to offer favors, presumably in exchange for political support.56 When it came to the High Court, such a reliance on patronage alone was unwieldy (given the number of judges) and not entirely effective (given the apparent antigovernment tendencies among certain judges). While rumors circulated about shadowy interchanges between High Court judges and government officials, these were less common than those concerning Supreme Court judges. Yet it was more common for High Court judges to be targeted with intimidation and thuggery, which was itself a key element of the broader strat-

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egy employed by government supporters from 2001 to 2003 in efforts to silence opponents to the third term in civil and political society. The period witnessed abductions and violent assaults of clergy, reporters, and politicians who had voiced criticism of the government and its plans. Anonymous phone calls issued threats against others. One Muslim cleric opposed to the president was even killed, allegedly by individuals linked to Muluzi.57 Marches by civil society groups were disrupted by the UDF youth wing and the police, while rallies frequently degenerated into bloody confrontations between government supporters and opposition groups. Those who acted on behalf of Muluzi operated with impunity. At the same time, the police, sometimes on the demands of party officials, imprisoned activists opposed to the third term (see VonDoepp 2005a). Both domestic and international actors raised concerns about the climate of violence and deteriorating respect for human rights. Judges at the High Court were also under threat in this climate. One judge was allegedly subjected to physical intimidation.58 Another was threatened with a police investigation after he refused to recuse himself from a case in which the government had a substantial interest.59 A more general concern lay in the fact that judges, both individually and collectively, were a target of public criticism by Muluzi and the ruling party newspaper.60 In the context of political polarization and impunity for those who acted on behalf of the president, this appeared to give license to Muluzi supporters to engage in violence and thuggery against judicial personnel. The UDF’s notorious youth wing, for example, sent truckloads of machete-wielding thugs to a magistrate court hearing a trial against several individuals charged with stoning a ruling party official. They in turn assaulted four family members of the accused individuals.61 In the wake of this, court officials called for more armed protection. Some judges took more individualized approaches to protecting themselves. One indicated that he changed his government-issued license plate in order to travel anonymously. Other judges applied for firearms permits.62 On one level, the broader efforts of the government and its allies had a deleterious effect on judicial autonomy. As the individualized responses highlighted above indicate, judges were clearly threatened in this setting and took actions to deal with the threats they perceived. One additional tactic was for judges to avoid taking cases that were of a controversial nature. Some judges purportedly shut off their cell phones if they felt they were going to be called to hear such a case. Others would simply make sure they were unavailable. This earned them considerable ire from members of the legal fraternity.63 Yet at a more important and fundamental level, the efforts against High Court judges failed to undermine the assertive tendencies among judges at the High Court. As one judge put it, “compromises in independence do not imply wholesale dependence.”64 Most importantly, High Court judges remained utterly willing to render decisions that interfered with government

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100 Judicial Politics in New Democracies interests. Indeed, if we look at the period from November 2001, when the three judges were targeted for removal by parliament, to the end of 2003, we find that sixteen out of twenty-five decisions in political cases (or 64 percent) went against the government! This is an even greater proportion of antigovernment decisions than were witnessed during the period from 1994 to 2000 when thirty out of fifty-six such decisions (or 54 percent) went against the government.65 Thus, the evidence suggests that judges at the High Court were not at all restrained during and in the wake of government efforts to rein them in. In these respects, the courts ultimately played a central role in derailing Muluzi’s third term ambitions, as several rulings undermined his ability to press for constitutional change and emboldened opponents of the move. One more notable decision came within weeks of the passage of the impeachment resolutions in parliament. Using a newly passed constitutional amendment that prevented MPs from switching from the parties with which they were elected, the speaker of the house attempted to declare vacant the seats of seven parliamentarians who had formed a pressure group opposed to Muluzi’s bid for a third term. The seven then turned to the High Court for an injunction, claiming that their rights to free association had been violated. The judge first issued and then left intact an injunction against the speaker, in effect leaving the seven MPs in parliament.66 The significance of this decision came into sharp relief less than a year later when the government failed by three votes to pass a constitutional amendment that would have allowed Muluzi a third term. Another decision addressed a May 2002 effort by Muluzi to ban all demonstrations concerning the third term, a move in clear violation of constitutional stipulations regarding free association. In October, however, a High Court judge declared the ban unconstitutional, a move that emboldened opponents of the third term seeking to generate collective resistance to the ongoing effort to pass a constitutional amendment in support of it.67 Other rulings undermined government efforts to expel other MPs and halted police from interfering with opposition groups planning demonstrations against Muluzi. In the end, the combined weight of antigovernment court rulings, fractionalization within Muluzi’s own UDF, and opposition and mobilization in civil society derailed the president’s efforts to amend the constitution. The quest that began in late 2000 ended finally in January 2003 when it was clear that there was not enough support in parliament for the amendment. In March, in a move that further fractionalized his party, Muluzi chose Bingu wa Mutharika, a relatively unknown and politically weak individual to serve as the UDF’s candidate for the 2004 elections. Muluzi retained leadership of the party, a step that would help to generate a vitriolic split between Muluzi and Mutharika shortly after the latter ascended to the statehouse.

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Mutharika and the Bench The experience of the judiciary under Bingu wa Mutharika reaffirms and builds on several of the themes advanced to this point. Like Bakili Muluzi before him, as well as Mwanawasa in Zambia, Mutharika’s time in office has been characterized by high levels of power dispersion and electoral uncertainty. Yet, ultimately, this did not lead him to respect judicial independence, as thin theories would have predicted. Very early in his administration, it became clear that Mutharika was in a relatively weak political position and confronted high prospects for being displaced before the end of his first term. Typical of leaders operating in a neopatrimonial context, he thus faced acute vulnerability. In this context, the courts emerged as centrally important to him as their decisions in key political cases had the potential to determine the ultimate fate of his presidency. Mutharika’s initial approach to this situation was one of restraint as he left the courts relatively free from interference. However, this changed substantially as the courts signaled their willingness to render decisions that could undermine his power. Fearing that elements of the judiciary had been captured and corrupted by his predecessor’s informal webs of personal exchange, Mutharika attempted to corral the judiciary and minimize its disruptive potential. As a partial reflection of his constrained capabilities as a weak state leader facing a hostile legislature, Mutharika lacked abilities to formally restructure the authority of the courts or purge personnel. He also eschewed efforts to embed judges in patronage networks. Instead, Mutharika opted to publicly badger judges and threaten them with charges of corruption and other improprieties, which his control over law enforcement agencies allowed him to do. Both the impetus for and the style of intervention reflected the neopatrimonial context in which he was situated. The Election of Bingu wa Mutharika Muluzi’s selection of Bingu wa Mutharika as the presidential candidate for the UDF came as a shock to Malawi’s political class. As soon as the bid for a third term had collapsed in early 2003, major players in the UDF began positioning themselves for the contest over who would be the party’s presidential candidate. Yet these individuals were quickly upstaged by Muluzi who in March announced that the cabinet and UDF executive committee had endorsed his choice of Bingu wa Mutharika as the presidential candidate. For Muluzi, a primary concern was having his successor turn on him, as had happened to Chiluba, and thus he had every interest in selecting an individual without substantial power of his own.68 Mutharika was ideal in this respect. In the past, he

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102 Judicial Politics in New Democracies had served as an economist with the World Bank and had been secretary general of a regional trade organization. In 1999, he ran against Muluzi for president, but obtained less than one percent of the vote share. He then served as Muluzi’s minister of economic development and planning. Most important, from a political standpoint, was his relative weakness. Not only was he quite unknown, he lacked resources, any sort of populist or charismatic appeal, and, as would become apparent, political acumen. Muluzi had all of the latter in abundant quantities. The ensuing elections campaign reflected the fractured and fluid political environment that emerged in the context of Muluzi’s departure. At least ten political parties, many of them new, were active in the lead up to the elections. Ultimately, five major candidates emerged to contest the polls for president, creating a tight race in which Mutharika’s victory was far from assured. As was the case in 1999, the elections process was marred with controversy. Muluzi aggressively campaigned for Mutharika, not only speaking on his behalf at rallies, but showering electors with cash and other petty patronage. While Muluzi financed a considerable amount of the Mutharika campaign, the latter also benefited from state resources, especially vehicles that were deployed to build Mutharika’s support base. At the same time, the UDF youth wing remained quite active in disrupting and interfering with the activities of opposition groups. Several opposition politicians were assaulted and vehicles and property were destroyed. Law enforcement agents were quite restrained in efforts to pursue the perpetrators of the acts.69 The most problematic dimension of the 2004 polls, however, lay in the role played by the Electoral Commission. The commission was headed by the same Supreme Court judge who had overseen the 1999 elections, an individual many in the opposition and civil society saw as manifestly biased in favor of Muluzi and the ruling party. Opposition parties and civil society groups publicly raised concerns about the judge and at least one group undertook efforts to dislodge him through the legal process. These concerns came to appear well founded. The registration process was undermined by a lack of sufficient registration materials, leading to criticisms of the Electoral Commission by foreign embassies and local civil society elements. When opposition and civil society groups complained about unbalanced media time and the use of public resources by the UDF, the head of the commission failed to take action. A subsequent EU report on the elections condemned the way the commission handled the entire process.70 Notably, with the exception of this judge, the courts as a whole came through the electoral process relatively untainted. Overall, they were relatively balanced with respect to the decisions that came out in the year before the elections. A majority of the significant cases were actually decided in favor of the

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opposition. These included cases that allowed one politician, previously banned from holding public office, to run for president, and a decision condemning the failings of the Electoral Commission and requiring an extension of the polling date. At the same time, the opposition lost a major case pertaining to the distribution of broadcast time, as well as cases seeking to remove the head of the Electoral Commission from his position. In the event, Mutharika won the 2004 polls. The announcement of the results ushered in a brief period of tension and violence and opposition parties prepared to challenge the results in court. Yet the uproar subsided relatively quickly in the context of a heated dispute between Mutharika and his sponsor, Muluzi, a conflict that could scarcely have been foreseen during the campaign. This returned the courts to a central place in the Malawian political system. The Judiciary and Mutharika’s New Path The marriage of convenience between Mutharika and Muluzi began to crumble shortly after the former’s ascent to the statehouse. Within weeks rumors began to circulate about a rift between the two as the new president sought to chart his own course. Muluzi allies were removed from positions of power and denied cabinet appointments, while former Muluzi clients and support groups openly complained that the new president had cut them off from state resources. The new government accused the past administration of overspending and, most significantly, began an aggressive anticorruption drive that seemed to target members of the previous government. UDF officials were increasingly threatened with arrest and rumors surfaced about investigations against the former president. In turn, the party itself began to fracture into proMuluzi and pro-Mutharika factions. By the early part of 2005, only eight months after his election on the UDF ticket, President Mutharika left the party, along with a number of senior party members and MPs. Yet Mutharika faced considerable challenges in his efforts to secure and assert his authority. For one, Mutharika’s support base in parliament was quite uncertain. After he left the UDF, he formed a new party that a number of MPs behind Mutharika subsequently joined. However, when they switched parties, the MPs violated a contested constitutional provision specifying that MPs who “crossed the floor” would have their seats declared vacant. This left his supporters vulnerable. At the same time, although the UDF lacked a majority in the parliament, it soon was able to cobble together an anti-Mutharika coalition with other parties. Mutharika thus faced a situation of divided government with a parliament all too ready to undermine him and his policies. Beyond this, the UDF, and Muluzi in particular, remained powerful actors. Muluzi was one of the richest men in Malawi, who controlled important resources such as his

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104 Judicial Politics in New Democracies own radio station and plenty of cash to help solidify his support base and, if necessary, pay legal fees for any court cases he needed to fight. He also had key allies in place throughout the state apparatus. One of these supporters was Mutharika’s vice president, who had refused to resign from the UDF at the time the president did. Rumors also circulated about Muluzi loyalists or clients within the civil service, security agencies, and the judiciary. Malawi’s political dynamic during Mutharika’s first term revolved around the broader conflict between him and his predecessor. As this unfolded, the judiciary became the central arbiter of political disputes between the two, deciding a large number and variety of political cases.71 Among the issues the courts were asked to address, three were of central significance for the president and his opponents. The first concerned treason charges brought against the vice president for his allegedly masterminding a plot to assassinate the president. Removing the vice president from the political scene was a major concern for Mutharika, who was concerned about the prospect of being targeted. The second involved the status of the “floor-crossing” constitutional provision described above, as the courts were asked to decide whether or not the provision was in conflict with other constitutional stipulations concerning the right to free association. In the event that it was not, the speaker of the house could be compelled to declare vacant the seats of MPs who left their original parties. This meant that the vast majority of Mutharika’s supporters in parliament could lose their seats and have to contest by-elections—a situation that would surely favor the president’s opponents in the legislature. Closely linked to this, the final issue concerned a parliamentary effort to impeach Mutharika. The courts were called upon to determine whether the procedures to be used were constitutionally valid. It bears mentioning as well that, at least for the first two years of the Mutharika administration, the courts’ preferences and inclinations with respect to the government were never readily apparent. The widespread suspicion was that while there were members of the High Court that fell into either the Mutharika or Muluzi camp, the overall tendencies of the judges were ambiguous. The same could be said of the Supreme Court. Judges did indicate that they were willing to challenge the executive and render decisions contrary to his interests. For example, early in the Mutharika administration, the judiciary began steps to take the government to court over a failure to implement pay increases. Later, judges threatened to go on strike to pressure government to provide new vehicles for them. Moreover, several High Court decisions went against the government in the first eight months of the Mutharika administration. However, the courts did not provide reason to suggest that they were in league with the political opposition. A rough count of the decisions that came

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from the High Court from the period when Mutharika broke with Muluzi (August 2004) up to October 2006 indicates relatively balanced decisionmaking. About half of the rulings (seventeen out of thirty-six) in political cases went in favor of the government. Several of these were of major significance for Mutharika. For example, court injunctions stopped impeachment proceedings from being introduced in parliament and prevented the speaker of the house from declaring vacant the seats of Mutharika’s parliamentary supporters. As important, the High Court, which at times sat as the newly developed Constitutional Court, was, conveniently, very slow in rendering decisions in cases concerning such issues.72 Thus opposition attempts to deprive Mutharika of parliamentary support and impeach him were effectively halted as the courts deliberated cases. Some suggested that this was itself a strategic move on the part of judges who delayed cases in the hope that the issue on which they were ruling would be overtaken by events. In the view of the opposition, however, the courts were seen to be protecting the president and on one occasion they openly accused the judiciary of shielding Mutharika.73 One partial result of these delays is that the Supreme Court, at least in the first half of Mutharika’s first term, avoided the unpleasant task of rendering decisions on the most significant political issues. Mutharika thus confronted an ambiguous context with respect to the courts. Like all leaders in neopatrimonial contexts, he faced potentially devastating costs in being ousted from power. Moreover, he was clearly threatened by forces seeking to cut short his time in office with impeachment charges that could have also led to convictions for criminal behavior.74 Given that the courts had some say over his ability to retain power, he presumably had some interest in making sure they supported him in their decisions. At the same time, for his first two years in office, the courts provided few signals that they were interested in undermining his power. Beyond this, even if Mutharika had sought to control the bench he was constrained by virtue of the fact that he would have lacked support in parliament for any move against the judiciary, and that he faced potentially high costs, in terms of estranging donors, for interventions that undermined the institutional paraphernalia of good governance. Still, the president was not without potential means of influencing the court through more subtle and informal means. Despite these circumstances, the evidence suggests that, initially, the president opted against aggressive efforts to influence and control the bench. His judicial appointments were undertaken in an open and transparent manner, and included one judge who later proved to be a major opponent. He also eschewed appointing judges to statutory corporations, as some individuals in his inner circle allegedly suggested he do.75 This caused some frustration to those who proposed such interventions as a means to keep the judges “busy and

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106 Judicial Politics in New Democracies happy.” Moreover, there is little evidence that Mutharika used the personal and shadow connections of the neopatrimonial context to bring individual judges, especially those at the Supreme Court, to support him. In interviews, judicial insiders pointed to distinct contrasts between Mutharika and his predecessor in these respects. As one put it, whereas Muluzi “shelled out money to the judges, Bingu does not play Santa Claus.” Another indicated that Muluzi “wanted to bend the judiciary in his favor” and “tried to sweeten the relationship with ‘carrots.’” Bingu, on the other hand, “calls us for dinner and it ends there.”76 Finally, Mutharika initially did not badger judges. The one exception to this otherwise restrained behavior is found in the actions of certain members of the administration who allegedly targeted and harassed specific judges with corruption investigations. At least two judges were rumored to have been threatened with corruption charges in the context of their deciding cases of interest to government insiders. Whether the individual who allegedly orchestrated the charges acted with the blessing or independent of the president remains an open question. Most in Malawi suggested the latter. In any case, the example of such interventions reminds us that powerholders seeking to manipulate the bench in neopatrimonial contexts have unique possibilities for doing so given that prosecutorial and investigative agencies can be directed to serve personal agendas. How can we comprehend the relative restraint of Mutharika vis-à-vis the courts? One possible explanation might be found in the thin approaches that this study claims as inadequate. After all, dispersed power and electoral uncertainty, such as Mutharika faced, are understood as the central political conditions that bring leaders to respect judicial autonomy. Yet these approaches are inadequate for a number of reasons. First, as I have indicated, there is little reason to suggest that Mutharika was interested in respecting judicial independence as a means to restrain future governments and ensure his own safety in the event that he was out of power. Given the circumstances he faced, his interest was to stay in power, and it soon became apparent that the judiciary would have considerable say over that. Moreover, although divided government placed constraints on the choices available to Mutharika vis-à-vis the courts, there were still other avenues that he could have taken in efforts to influence the bench. Members of his government wanted him to favor judges with appointments to parastatals and commissions, but he refused. He also might have tried to use other forms of material patronage, as he allegedly did when coaxing MPs to join his party, to try to influence the courts, but he apparently did not. Finally, as we will see, Mutharika’s restraint with the bench was itself temporary, despite the fact that the objective distribution of power and level of electoral uncertainty in the system did not change. Instead, Mutharika’s initial restraint is best understood in light of certain idiosyncratic features of his administration. Primary among these is the nature

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of the president himself. Mutharika in many respects represents a poor example of the idealized strategic political actor. It needs to be remembered that he had never achieved any type of political success before becoming president. His experience was that of a technocrat, not a political player versed in the hard-knock machinations of palace politics. Indeed, this is precisely why he was chosen by Muluzi as a successor. Members of his own administration, in fact, decried the fact that Mutharika lacked an overall political strategy and instead focused on policy matters, much to his detriment. Beyond this, as someone very concerned with policy matters and relatively new to power, Mutharika likely lacked the networks and skills to make effective use of patronage and personal links in a manner similar to that which Muluzi allegedly had. And given his emphasis on cleaning up the government, at least initially, he, like Mwanawasa in Zambia, might have hesitated to do so. The Courts as the Enemy Mutharika’s restrained approach to the courts proved short-lived in any case. Beginning in 2007, the president began to aggressively badger and threaten judges in an effort to minimize their undermining of his political objectives. The proximate source of the changed posture was the president’s perception— informed by court signaling—that the judiciary was both hostile to his administration and corrupted by opposition forces seeking to overthrow him. Relations with the judiciary began to deteriorate by the middle of Mutharika’s first term. Prior to that, although the courts had demonstrated a willingness to render antigovernment decisions, they gave little indication that they were manifestly opposed to the president. The ambiguous perception of the court began to change in late 2006 when the High Court, sitting as a Constitutional Court, issued rulings on key political issues that represented dramatic setbacks for Mutharika. First, the court declared that the “floor-crossing” provision of the constitution was constitutional and that the speaker could declare vacant the seats of MPs that had switched parties. This meant that the opposition would likely obtain the two-thirds majority needed to impeach the president. Weeks later, the same court denied Mutharika leave to appeal the decision to the Supreme Court. Shortly thereafter, the courts refused to allow Mutharika to fire his vice president, who at the time was confined to his house awaiting his trial for treason. The decisions on these key issues came in the context of growing tensions between the administration and the judiciary. Judges and the government had for months been engaged in a conflict over salaries. Although parliament passed salary increases for judges, the president subsequently indicated that there was not enough money to pay for them. Private meetings between judges and the president over the issue allegedly went poorly, with the president

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108 Judicial Politics in New Democracies voicing frustrations over some judges consistently siding with the opposition.77 In turn, the Malawi Law Society sued the executive, on behalf of the judges, to force the executive to implement the increases. Moreover, by this point in Mutharika’s tenure it was clear that some judges were indeed siding with the opposition on a relatively consistent basis. Rumors circulated also about ongoing connections between Muluzi and several judges, where the former continued to communicate with and provide material favors for the latter.78 For Mutharika then, elements of the judiciary came to represent the same enemies that were trying to undermine his presidency. The first open assault on the judiciary came in the president’s 2007 New Year’s address to the nation. In it he openly claimed that “crafty opposition leaders” had penetrated the judiciary, inducing it to render decisions that were stifling the government. While members of the judiciary did not respond to the accusation, they remained unavoidably involved in political life as they continued to decide cases that directly affected the president and other key political players. In the context of increasing polarization and acrimony in the system, several key decisions went against the president. For example, one decision prevented the government from interfering with private radio stations (including Muluzi’s) that were making broadcasts unfavorable to the president; another prevented the police from halting a pro-Muluzi rally shortly after the former president announced his intention to run again for executive office; another nullified the president’s appointments to the electoral commission. At face value, none of these rulings were manifestly outrageous in their reasoning. They nonetheless hardened the president’s perception that he faced a hostile bench. In turn, his public attacks continued. In his opening budget speech to parliament in May 2007, Mutharika claimed that a “mafia-like godfather” had been corrupting members of the judiciary. Weeks later, the Supreme Court issued the final decision on the contested floor-crossing provision of the constitution, declaring that it was indeed valid. Mutharika responded by claiming that the chief justice, who delivered the ruling with four other judges concurring, had been manipulated by Muluzi. The minister of information echoed these sentiments, maintaining that the chief justice, who had just retired in any case, would be held accountable for his actions.79 She later allegedly claimed that Muluzi and the chief justice held secret meetings in advance of the ruling.80 In the wake of further public criticism of the judiciary by the president, Malawi’s judges took the unprecedented step of not attending annual independence day celebrations.81 The situation deteriorated further as the opposition attempted to force the speaker of parliament to suspend normal business and implement the floorcrossing provision. This created an impasse between the legislature and president, who insisted that parliament discuss and pass the budget before any

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other business was introduced. Consistent with previous patterns, the courts became centrally involved in the dispute, issuing a number of rulings and injunctions with direct bearing on the conflict. Yet when one apparently proopposition judge issued a ruling against the government, anticorruption agents immediately afterwards conducted a search of the judge’s house. The following day, the judge’s passport was “mysteriously” found in a UDF bag on a major road. In the month that followed, government announced plans to make a number of new appointments to both the High and Supreme Courts, more than doubling the size of each. Notably, such increases were certainly necessitated by shortages of personnel for the bench and followed longstanding calls for more personnel. Yet its timing, coupled with Mutharika’s clear concerns about some judges, raised eyebrows among some observers.82

Conclusion The experience of Malawi’s judiciary since the onset of democratic rule reminds us of the perils that accompany the judicialization of politics in neopatrimonial contexts. As the courts became central players in the political process, leaders necessarily had to take an interest in them and seek to manage them. This led to the courts being targeted by administrations. Yet rather than enfeeble the courts, the more general outcome has been that the courts themselves appear to have become politicized. As one judge put it to me, “judges are no longer victims, instead, they are compromised.” The fear is that as politics has now entered the judiciary, the image of the courts as neutral arbiters in Malawian politics can erode. While they enjoyed such status for much of Malawi’s democratic history, whether they will emerge from the contemporary period unscathed remains an open question. There is, this said, reason for optimism. The judicial branch has certainly not embraced a posture of deference. While judges may fear the executive, they are not behaving as servants of the administration. Thus, so long as some semblance of democracy and constitutionalism remains, they have the potential to serve as instruments of horizontal accountability.

Notes 1. The rumors fed on a longstanding fear that whites used African blood to make money (Brietzke 1974). 2. Author interviews with former judges, August 2001. 3. Personal communication with Clement Ngongola, March 1, 2001; interview with former judicial officer, August 2001.

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110 Judicial Politics in New Democracies 4. Michael Simmons, “Malawi Speech Ban Overruled,” The Guardian, February 9, 1993. 5. This built on an earlier seminar held in November 1993 that established some of the parameters for constitutional design that were to be followed. See Banda (1998: 321). 6. Author interview with former NCC member, July 2006. 7. Constitution of the Republic of Malawi, Sec 110. 8. Banda had himself suspended the operation of such courts in October 1993. 9. The body has largely avoided accusations that it has been politicized. As I discuss in more detail below, this is also true of appointments to the bench over which the commission asserts some authority. 10. Author interview with former cabinet minister, July 2006. 11. Owonera Odala, “Malawian Courts Take Centre Stage,” The Nation, January 10, 1997 12. Most important of these was what came to be known as the “Strangers in Parliament” case, Chipeta v. Attorney General, Civil Case No. 1504 of 1994. 13. See van Donge (1998) for a review of the case. 14. Some of the key cases considered by the courts were: Attorney General v. McWilliam Lunguzi and Foundation of Integrity of Creation, Justice, and Peace, MSCA Civil Appeal No. 23 of 1994; The President of Malawi and Speaker of the National Assembly v. Kachere and others, MSCA No. 20 of 1995; Attorney General v. Mapopa Chipeta, MSCA, Civil Appeal No. 33 of 1994; and Attorney General v. MCP and others, MSCA Civil Appeal No. 22 of 1996. 15. Ambokile Salimu, “A Note on the Judiciary,” The Nation, September 3, 1997. 16. See “Chief Justice Must Resign,” Daily Times, February 20, 1997. 17. Author interview with informant, August 2006. 18. Author interviews with opposition figures in August 2001 indicated that such perceptions increased following 1996 when a number of Supreme Court rulings went against them. Such claims were also made in interviews with Malawian lawyers in June 2002 who also pointed to rumors that circulated during this period. 19. Consumer Association of Malawi, “Study of the Distribution, Pricing and Consumption of Sugar in Malawi,” September–December 1997. 20. “Malawi Sugar Industry Is Big Money and Big Politics,” ANC Daily News Briefing, April 22, 1998. 21. “Maize Scam . . . Top Officials Implicated,” Daily Times, December 31, 2001; “Maize Report Still a Secret,” The Nation, August 26, 2004. For other reports of alleged economic activities during her time in office under Muluzi, see Pilirani Phiri, “Country Loses K5 Billion in Corruption,” The Chronicle, November 21, 2005. 22. “Judiciary’s Door Open to the UDF,” Daily Times, January 22, 1996. 23. “Lawyer Cries Foul,” The Nation, March 5, 1997; “Malawi Court Dismisses Application,” Daily Times, March 5, 1997. 24. As described in Raphael Tenthani, “State, Opposition Differ on Judiciary’s Independence,” Pan African News Agency, January 4, 2000. See also, “Judiciary Comes Under Attack,” Malawi News Online, Edition 21, December 19, 1996. 25. See Malawi News Online, Edition 36, October 26, 1997. 26. Author interview with former cabinet minister, July 2006. 27. The cases referred to are Director of Public Prosecution v. Banda and Others, MSCA Civil Appeal No. 21 of 1995; and Attorney General v. Masauli, MSCA Civil Appeal no. 28 of 1998. 28. By the author’s estimation, twenty-two out of forty-five High Court decisions between May 1994 and June 15, 1999, went against the government.

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29. “MCP Disputes Three By-election Results,” Malawi News Online, July 23, 1997. Emphasis added. 30. Author interview with ranking opposition figure, August 2001. 31. “Lawyer Cries Foul,” The Nation, March 5, 1997. 32. The Nation, March 17, 1999. 33. Raphael Tenthani, “State-Opposition Differ in Independence of the Judiciary,” Pan African News Agency, January 4, 2000. 34. “Fachi Dismisses Sensitive Memo,” The Nation, May 4, 2000. The government claimed that these allegations were fabricated on the basis of a forged memo. 35. Daily Times, September 27, 2000. 36. “Speaker Loses Appeal,” The Nation, October 16, 2000. 37. “Gwanda, Fachi, in War of Words,” The Nation, October 25, 2001; “MP Attacks Judiciary,” The Nation, October 25, 2001. 38. “Dumbo Lemani Attacks Judges,” UDF News, October 26–November 1, 2001. 39. “Judges Threaten to Close Courts,” The Nation, November 14, 2001. 40. This was true despite allegations that the chief justice himself had complained to the attorney general about his inability to control High Court judges, which the government later used to justify their move. See International Commission of Jurists: Malawi Report, Fact Finding Mission, December 16–22, 2001, 8. 41. “Donors Petition the Speaker on Judges,” Daily Times, November 9, 2001. 42. Malawi News, November 3–9, 2001. 43. “Whither Judicial Independence in Malawi,” letter from the Church of Central Africa Presbyterian to President Muluzi, November 14, 2001; The Nation, November 26, 2001 reported that United Nations Special Rapporteur on the independence of judges and lawyers contacted the government over the issue. 44. International Commission of Journalists, “Malawi, Final Report of Fact-Finding Mission and Trial Observation to Malawi,” August 22, 2002. Available at www.icj.org/ news.php3?id_article=2781&lang=en. 45. “Britain Cautions Muluzi over Governance,” Daily Times, January 31, 2002. 46. Correspondence with Malawian legal expert, January 2008. 47. “Malawian President Pardons Judges,” Pan African News Agency, May 7, 2002. Only two judges remained charged at that point. In the earlier part of the year, Muluzi had dismissed the charges against one of the judges. 48. Correspondence with Malawian legal expert, January 2008. 49. International Bar Association, “Malawi Mission Report.” June 2, 2008. Available at http://www.ibanet.org/Search/Default.aspx?q=malawi. See p. 41. The report corroborates that judges were indeed involved in commercial activities. 50. For one example of such allegations, see Pilirani Phiri, “Country Loses K5 Billion in Corruption,” The Chronicle, November 21, 2005. 51. Some evidence appears in The Nation, August 27, 2003, which lists the names of those appointed to parastatals. One individual listed does share the surname of one judge. 52. Again, these stories cannot be verified, but come from well-connected sources. On the issue of corruption, generally, within Malawi’s judiciary, see Kanyongolo 2004: 20. On the issue of communications between the executive and judges, see USAID, Office of Democracy and Governance, “Guidance for Promoting Judicial Independence and Impartiality, January 2002, 62. Notably, while the report describes these communications in terms of the solicitation of advisory opinions, the original submission by the Malawian consultant for the report, which the author has a copy of, described them as “secret communications.” 53. “Muluzi Cabinet Swindled K10 Bn,” The Nation, July 23, 2004.

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112 Judicial Politics in New Democracies 54. The Chronicle, March 22, 2004; “Libya Dumps UDF,” The Nation, January 5, 2006. 55. Khembo (n.d.); “MPs to March Against Bingu,” The Nation, October 6, 2004. 56. Author interviews with informants, August 2006. 57. “Malawi Police Arrest Party Militants for Murder,” Pan African News Agency, November 5, 2004. 58. International Bar Association, “Malawi: Report on a Mission to Malawi by the IBA,” 41. 59. “Mwaungulu Probed for No Offense,” Daily Times, May 30, 2003. 60. Muluzi criticized one judge’s ruling in June 2002 as irresponsible and silly, and vowed to disregard it. See “Judiciary and Muluzi Clash Over Third Term,” UN Integrated Regional Information Networks, June 4, 2002; “Democracy, Governance and the Rule of Law,” UDF News, February 22–25, 2002. 61. “Malawi’s Young Democrats Assault Four People Outside Court,” Agence France Presse, March 4, 2003. 62. Author interviews with informants, August 2006. 63. Public statements issued at Symposium on Constitution and Constitutionalism, Superior Hotel, Blantyre, Malawi, June 22, 2002. 64. Author interview with judicial officer, June 2002. 65. This count includes injunctions in politically relevant cases. If minor injunctions are removed (i.e., those with no discernable impact) then twelve out of nineteen decisions can be considered to have gone against the government. 66. Brown Mpinganjira et al. v. Speaker of the National Assembly, Civil Cause no. 3140 of 2001. 67. The details of the case are discussed in “Malawi High Court Reverses Muluzi’s Ban on Third Term Demos,” Agence France Press, October 22, 2002. 68. Mabvuto Banda, “A Silent War in the UDF: Muluzi’s Remarks Worsen Confusion,” Daily Times, March 6, 2003. 69. Peter Banda, “Squads of Youths Keep Democracy in Check,” Sunday Times (South Africa), April 25, 2004. 70. See European Union Election Observation Mission to Malawi (2004). “Peacefully Conducted Elections with a Wide Choice of Political Contestants Marred by Serious Shortcomings in the Electoral Process.” Available at http://aceproject.org/ero-en/regions/ africa/MW/Malawi%20-%20EU%20Final%20version%20of%20preliminary%20 statement.doc/view. 71. For example, the courts had to determine whether the government could remove the security details of the former president and vice president, whether the Anticorruption Bureau could force Muluzi to testify, and whether the government could effectively force the retirement of the vice president. Other cases involved the reach of government authority, such as whether certain appointments made without parliamentary approval were legal or whether the government could close down financial institutions thought to be connected to Muluzi. Others involved corruption and criminal charges against Muluzi allies. 72. This arrangement was created in 2003. With its development, cases of a constitutional nature were no longer heard by single judges at the High Court, but by panels of three High Court judges. Their decisions were still subject to appeal to the Supreme Court. 73. Daily Times, November 9, 2005.

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74. One of the charges against Mutharika was that he used public money to entice legislators to join his party. 75. Author interview with informant, August 2006. 76. Author interviews with judicial insiders, August 2006. Reference is made here to dinner invitations Mutharika issued to judges in 2006. 77. Edwin Nyirongo, “Sorry, No New Salaries, Bingu,” The Nation, November 7, 2006. 78. Author interview with informant, August 2006. 79. “Bingu bashes Unyolo over Sec 65 Ruling,” The Nation, June 21, 2007. 80. “UDF Press Statement on Honourable Kaliati's Campaign of Deception and Misinformation,” July 25, 2007. Available at http://groups.yahoo.com/group/amalawi/ message/2816. 81. “Judges Shun Mutharika at Independence Rally,” Nyasa Times (Online), July 9, 2007. 82. “Govt. to Appoint New Judges,” The Nation, November 3, 2007.

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5 Party Dominance and Judicial Autonomy in Namibia

“Not once did politicians try to interfere with us; there was a good rapport.” “SWAPO has overall adopted a very responsible policy with respect to the judiciary.”

The above quotes, coming from individuals with experience on Namibia’s High and Supreme Courts, represent the predominant perspective on governmentjudicial relations in the country during the first fifteen years of independence. While relations sometimes witnessed conflicts, challenges, and worrisome developments, Namibia’s leaders largely avoided manifest or subtle efforts to control and manipulate the courts. Members of the bench, in turn, maintain that they operated with high levels of independence, making decisions without reference to the wishes of powerholders. One irony of this situation is that Namibia is most clearly the case where thin strategic frameworks would have predicted high degrees of government interference with judicial autonomy. Levels of electoral uncertainty were low, while the highly disciplined ruling party, SWAPO, held firm control of the executive and legislative branches since independence. Indeed, most of the time, they held super-majorities in the legislature that gave them considerable power to amend the constitution. On top of this, while majoritarian institutions represented the aspirations of Namibia’s struggle for independence and racial equality, the judiciary, at least initially, reflected some of the legacy of Namibia’s colonial and apartheid past. In the view of some, the courts were a preserve of white minority power that challenged the transformative agenda of the government. Still, the approach of the government toward the courts was characterized by considerable restraint and respect for judicial autonomy. Notably, this restraint and respect took place despite the fact that the courts showed 115

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116 Judicial Politics in New Democracies no inclination to defer to the government in their decisions. By the author’s estimate, well more than half of the decisions by the courts in noncriminal cases were decided against the government. Moreover, judges displayed no deference to the government in cases that were of apparently high interest to those in power. How do we explain the behavior of the government, especially as compared to the patterns observed in Malawi and Zambia? My argument builds on, and seeks to advance, the key themes raised in the previous chapters. In the first place, I maintain that the character of the larger political system and, in particular, the relatively limited presence of neopatrimonial tendencies, helps to account for the experience of Namibia’s courts relative to those of the courts in Malawi and Zambia. On one level, this factor helps us to understand why impulses to intervene in and control the courts have been comparatively weak in Namibia. In contrast to the situation in places like Malawi and Zambia, Namibia’s leaders have faced few irregular challenges (and, indeed, few regular electoral challenges) to their holds on power and have had less to fear from being displaced from power. In the absence of such threats, they have been more able to tolerate the presence of institutions that might otherwise have interfered with their objectives. To be sure, this does not mean that powerholders in Namibia have wholly lacked impulses to intervene in the courts. As I will indicate, the available record suggests that important players in government wanted to take steps to rein in judicial power so it did not interfere with their agendas. However, these individuals had to coexist with others who were strongly committed to the rule of law and judicial independence. The weakness of neopatrimonial tendencies looms as important here as well. As leaders have been more secure and the “politics of survival” less prevalent, there has been room for different types of political agendas to operate within the state, and the executive branch in particular.1 One of these agendas involved a program for transforming Namibia to provide a greater share of political and economic power for the black majority. Yet another prioritized retaining Namibia as a model constitutional democracy in Africa. This latter agenda checked the former and offered some protection for judicial institutions. Second, and equally important, Namibia has been characterized by only limited levels of judicialization. In stark contrast, again, to the situations in Malawi and Zambia, Namibia’s courts have not been asked to adjudicate cases that have gone to the heart of the ruling party’s power and interests. The reasons for this will be discussed in more detail below. Suffice it to say that, in combination with the other factors described here, this limited judicialization has kept the judiciary relatively off the radar of key powerholders. Thus, while a program for controlling the judiciary operated within the state, it never had great priority.

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Finally, judges played important roles in helping to promote their own autonomy. As will be seen, key players in Namibia’s judiciary were very conscious of keeping open lines of communication with members of the executive branch toward the end of protecting the judiciary from political interference. Other judges took public steps to challenge what they viewed as interference with the bench. This effectively raised the costs of judicial manipulation by showing that efforts to manipulate the bench would be met with active public resistance by members of the bench. Such actions were frequently supported by members and representatives of the legal profession in Namibia.

Historical and Institutional Contexts Namibia’s historical experience stands in stark contrast to those of Malawi and Zambia. Whereas those countries’ current experiments with democratic rule followed postindependence authoritarian governments, Namibia emerged as a democratic country in the wake of a protracted struggle for independence against South Africa that concluded only in 1990. Its historical experience had a substantial impact on the courts in the postindependence era. This is especially true with respect to the larger constitutional and institutional structures that emerged to govern the operation of the courts and regarding the political support the courts enjoyed (and failed to enjoy) at independence. The area that would become Namibia was colonized first by the Germans in the late 1800s; their rule over the colony was consolidated after several brutal campaigns against native populations that stood in the way of settlers seeking land. In 1920, then-named South West Africa was entrusted to the Union of South Africa as part of the Treaty of Versailles. The treaty also authorized South Africa to extend its judicial system to South West Africa.2 In the wake of this, still more settlement occurred, largely by South Africans. Under South African rule, the social and political system came to reflect the interests of white settlers and the colonial power. Even though the country legally became a UN protectorate after 1946, the South African government extended its policies of apartheid and “ethnic homelands” to Namibia (Bauer and Taylor 2005: 210). Also extended to Namibia were brutal labor regulations and policies that generated great hostility toward colonial power and the apartheid system from the local population (Nujoma 2001). Significant local and international resistance to South Africa’s continued domination of the country emerged in the late 1950s and early 1960s. In the wake of the substantial repression of an incipient nationalist movement within South West Africa, SWAPO, under the leadership of Sam Nujoma, was formed in exile in 1960. The organization committed itself to ongoing efforts to work through international bodies, such as the UN, to pressure the South

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118 Judicial Politics in New Democracies African government, as well as to an armed struggle against it within the country. In 1966, SWAPO engaged in its first military action against the South African Defense Forces. Also in that year, the UN General Assembly officially terminated South Africa’s mandate over South West Africa, placing the country under the direct legal responsibility of the UN. By 1973, SWAPO was officially recognized as the sole and legitimate representative of the Namibian people. Political and social unrest within the country increased markedly over the 1970s, often met with brutal repression at the hands of the colonial government. This added to the ranks of those willing to take arms against the government. By the mid-1970s northern Namibia was effectively a war zone as South African security forces and those allied to them fought against SWAPO guerillas (Bauer and Taylor 2005: 211). Meanwhile, international efforts to deal with the problem continued. In 1978, the UN Security Council passed Resolution 435, which authorized the creation of a “transition assistance group” to oversee Namibia’s transition to independence. Despite the fact that the South African government had nominally committed itself to the implementation of “435,” over the next decade it continued to stall and even work against Namibian independence. By the end of the 1980s, however, changed international circumstances—particularly the cessation of conflict in Angola and the weakening of the Soviet Union—enabled the key actors to move forward on the issue of independence. In April 1989, the UN began to supervise the transition to an independent government. As part of this process, the UN supervised elections for a constituent assembly that would be charged with drafting a constitution for the country.3 The elections led to a majority for SWAPO on the assembly, although not the two-thirds that would have allowed it to effectively write the constitution without the input of other parties. Although many expected the constitutionwriting process to be highly contentious, it actually proved to be surprisingly harmonious as parties were able to complete the document within eighty days. One week after the constitution was adopted by the assembly, the body elected Sam Nujoma, SWAPO’s leader, to be the first president of the country. At independence, the constituent assembly was convened into the first national assembly. The distribution of seats in the first parliament thus reflected the distribution of seats in the constituent assembly. The constitution that emerged from these processes is hailed by some as among the most liberal and democratic in the world (Bauer and Taylor 2005: 217). With respect to the judiciary, both the powers granted to the institution and the protections that it enjoys are quite substantial. Included in the constitution is an extensive and fully justiciable bill of rights, which specifically requires that administrative agencies act fairly and reasonably toward citizens. This gives citizens the right to take executive agencies to court and the judici-

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ary the authority to adjudicate such matters. Beyond this, rights of standing (concerning who may bring matters before the court) are fairly broad, thus increasing the prospects that courts will be asked to adjudicate the actions of the executive and legislative branches. In terms of protections for judicial independence, the Namibian constitution extends further than those in Zambia and Malawi. While constitutions in those countries maintain that the judiciary should be independent or “free of influence” from others, the Namibian is even more demanding. Members of government and the legislature are specifically required to refrain from interfering with judges in the exercise of their powers, while all organs of the state are required to assist the courts in the protection of their independence. Perhaps even more significantly, the Namibian constitution vests greater control over appointments with the judiciary and legal bodies, albeit with less input from the legislature. In Namibia, the Judicial Service Commission has the authority to recommend all permanent appointments to the High and Supreme Court benches, including that of chief justice, to the president. In Namibia, the commission is constituted of the chief justice, a judge appointed by the president, the attorney general, and two representatives from organizations representing the legal profession. Similarly, the commission has authority over the removal of judges as the latter can only be removed on their recommendation to the president. As I indicate below, up until 1995, and perhaps beyond, this body was relatively insulated from the influence of the executive branch. Thus personnel decisions remained substantially influenced by members of the judicial and legal system. The development of such robust institutional provisions for judicial authority and independence is somewhat striking, especially given that the legal and judicial system remained in the hands of minority groups, specifically whites, who had been some of the primary beneficiaries of the apartheid system that SWAPO had opposed. In effect, the constitutional provisions created a situation where the judiciary could not only protect the interests of minority groups, but would also be constituted in a way that reflected patterns of racial inequality in the country. How can we understand SWAPO’s acceptance of such a situation? Part of the reason for this likely reflected the fact that the key principles for the constitution had been agreed to by the parties by the early 1980s (Bauer and Taylor 2005: 216). Under pressure from western governments, SWAPO (and the South Africa government) had agreed to certain key constitutional principles in 1982 as part of the effort at that time to get the transition to independence moving. Key elements of these principles included liberal institutional protections for minority groups, such as a declaration of fundamental rights and the presence of an independent judiciary responsible for interpreting the constitution (Steytler 1995: 487). Thus there were some

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120 Judicial Politics in New Democracies clear agreements on the principle of judicial power and autonomy well in advance of the constitutional drafting process. At the same time, the available evidence suggests that the structures that emerged were not SWAPO’s preferred choice. The original SWAPO draft of the constitution, submitted as part of the drafting process, gave much greater power to the executive over the appointment of judges by, for example, allowing the president to simply appoint judges (including the chief justice) to the Supreme Court. Moreover, the SWAPO vision for the Judicial Service Commission was for the body to be more effectively influenced by the executive (Steytler 1995: 495). Yet, the document that emerged decidedly eschewed such extensive presidential powers and reflected other voices involved in the drafting of the constitution. There are a number of factors that help to account for this. For one, the larger environment of conciliatory postures and collegiality likely contributed to SWAPO’s acceptance of the more extensive provisions for judicial autonomy. It is indeed quite striking that the above-mentioned provisions never became the subject of public debate; this in contrast to certain other issues that required considerable deliberation before they were resolved.4 Beyond this, several of the key SWAPO representatives who played a part in drafting the constitution were themselves strongly committed to judicial independence, as were the key South African advisors to the process.5 Finally, the judiciary as an institution had come through the liberation struggle relatively untainted by its association with the colonial order. In 1985, the South African government enacted a bill of rights for Namibia (still under their control) against which administrative and legislative acts could be tested (O’Linn 2003: 179). This allowed the court to play a role in checking the abuses of the government, in some cases, in support of SWAPO activists. This included decisions to free persons who had been detained without trial, rulings that allowed SWAPO elements within Namibia to hold meetings, and judgments that allowed opposition papers to operate.6 As a result, the institution and many of the personnel associated with it were viewed in a positive light. As one of the key representatives to the assembly noted, making specific reference to individual judges, “(Judge) Berker was seen as an anti-apartheid crusader, while judges like Levy and Strydom distinguished themselves as strict interpreters of civil liberties.”7 Another commented, “partially because the judiciary stood up quite well in apartheid days, it was not a big topic of discussion.”8 This good will to the courts also extended to certain sectors of the legal profession. The South West Africa Society of Advocates had not only been the source for some of the appointees to the bench during the decade before independence, it had also taken an independent role in challenging abuses by members of the defense and security apparatus. Members of the body had served on cases in which SWAPO members were charged with crimes. And several

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advocates had started an organization in the late 1980s dedicated to achieving Namibian independence. These latter considerations not only make more comprehensible the constitutional stipulations regarding the judiciary, they also help to account for the personnel decisions that were made with respect to the institution during the transition to independence. Most of the individuals who had served on the courts just prior to independence became judicial officers for the new Namibian High and Supreme Courts. Thus, there was considerable continuity for the judicial system as Namibia became an independent country. As we will see below, while this reflected some good will toward the courts and solidified the image of the courts as an independent branch of government, it also carried considerable liabilities. This was especially so as it rendered the institution vulnerable to accusations that it represented a vestige of white minority privilege that stood in the way of the aspirations of the Namibian people whose representatives held power in the executive and legislative branches.

Government-Judicial Relations in Independent Namibia It is important to keep such legacies in mind as we consider the experience of the courts in Namibia. Both the racial composition of the bench and the institutional structures governing the judiciary became central issues in the relationship between the courts and other powerholders in the new democracy. In the discussion that follows, I offer a narrative account of the pattern of government-judicial relations, bringing attention to these and other issues. The central point that I seek to convey concerns the relative autonomy that the judiciary enjoyed during Namibia’s first fifteen years of independence. Overall, interference with the bench was minimal and the judiciary was able to act without fear or consideration of other powerful players in the system. To be sure, this does not mean that the relationship between powerholders and the courts was without strain or challenge. There are three particular areas that deserve highlighting in this respect. The first is the public relationship between the courts and powerholders. Government and ruling party actors at times offered public comments that denigrated and even threatened judges. The second concerns government actions with respect to judicial appointments and staffing, and especially government willingness to prioritize issues other than qualifications and capabilities when considering which individuals should be appointed to and retained on the bench. Closely related to this, the third area involved government and ruling party dealings with key institutional structures guaranteeing judicial autonomy. Yet even with such issues in mind, the larger story in Namibia has been one of amicable relations between the government and the judiciary and respect and

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122 Judicial Politics in New Democracies restraint on the part of the former toward the latter. For example, much as government and SWAPO hardliners voiced acerbic and threatening comments toward the bench, government officials also kept lines of communication open with the bench and frequently stood up in defense of the judiciary in the wake of such attacks. Moreover, apparent threats to judicial autonomy did not necessarily reflect a government program to control or manipulate the bench. Efforts to deprioritize merit considerations in judicial appointments, for example, partially reflected attempts to transform the legal system to make it more representative of Namibia’s racial makeup. The same can be said of government-initiated changes to the rules governing appointments to the bench. Finally, government discourse rarely translated into definitive patterns of action against the judiciary. Racial Politics and the Challenge of Autonomy As discussed, the judiciary began its new life in independent Namibia in a curious position. It was clearly the least transformed of the major governing institutions. Whereas SWAPO controlled the legislature and the executive, the personnel in the justice system were the very same people who had been in place prior to independence. This meant that the bench was primarily white, even though whites constituted less than ten percent of the population. The High Court bench was made up of three white male judges. Two of these had served on the bench during the 1980s, both with solid track records of supporting human rights during the liberation struggle. The final judge had served as an advocate prior to independence and had earned a reputation for his antiapartheid work—most notably his activities with an important pro-independence pressure group whose activities had been applauded by Sam Nujoma while he was in exile. Notably, the first two appointments to the bench shortly after independence were also white males. One was a Namibian advocate who had served on a number of cases in the 1980s in support of the political opposition. The other was a British national with experience on the Supreme Court in Swaziland. With respect to the Supreme Court, officially opened in October 1990, the situation was somewhat different. The new chief justice was Hans Berker, a white Namibian who had served as the judge president of the High Court prior to independence. Two other judges, one a South African of Indian descent, the other an African, were then appointed from South Africa and Zimbabwe to serve in acting capacities. The goal, which had broad support in both legal and political circles, was to ensure that high-caliber personnel would staff the bench, even if this meant bringing in individuals from outside the country.9 Although many of the individuals on the court had played neutral, if not supportive, roles with respect to SWAPO’s struggle for independence, the

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composition of the judiciary clearly reflected Namibia’s apartheid past and its ongoing racial divisions. This substantially informed its experience in the initial years after independence. Simply put, in contrast to SWAPO and its leaders who held power in the executive and legislative branches, the judiciary lacked broad roots in and support from society. Thus, even with its institutional protections and support from the legal community and civil society in the capital, the judiciary was in a somewhat dangerous situation. This became especially apparent when they were called upon to decide issues that recalled the country’s violent and repressive past and played into racial dynamics. The first troubling signs for the judiciary emerged from these kinds of circumstances. In early 1991, less than a year after independence, the High Court heard the treason trial of persons who had been part of a white right-wing plot to violently overthrow the government. Although the primary ringleaders were able to escape the country and avoid trial, three of the secondary players in the plot came to trial. Developments were closely monitored in the press. Ultimately, the three accused were found guilty of lesser charges and received relatively light sentences. The sentencing decision generated the first public confrontation between the courts and the government and ruling party. Prisoners, many of whom were held for crimes committed before independence, demonstrated, claiming that they had received greater sentences for lesser crimes.10 In the wake of this, a leading party official described the decision as a “derogation of justice” that would not be tolerated, while a deputy minister claimed that it had confirmed perceptions that a white dispenser of justice would act in favor of a white perpetrator of violence.11 Party rank and file called for replacement of judges who had served during the colonial government. At later points, SWAPO leaders organized mass rallies calling for the removal of the judge and prosecutor general and presented a petition calling for the dismissal and arrest of the judge on the case, as well as the removal of other judges who were “biased and disloyal.” A later public comment by the same leading party official suggested that it was perhaps time “for a drastic change from the old bones in our judicial system.”12 Key groups such as the law society condemned the assaults on the courts and called on the attorney general and prosecutor general to take action against those who had criticized the ruling and called for the dismissal of the judge. Constitutional stipulations prevented members of the other branches from interfering with the judiciary and called on government officials to assist the courts in maintaining their “independence, dignity and effectiveness.”13 And indeed, both the prosecutor general and chief justice threatened contempt charges against those leading the public attacks on the court. In response, government and party officials claimed that those opposing the courts and the decision were merely exercising their rights of free speech.

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124 Judicial Politics in New Democracies In the event, judicial officials consciously opted against bringing contempt charges, as they wanted to avoid heightening the confrontation.14 Instead, senior judges met privately with President Nujoma in an effort to help defuse the situation. In the wake of this, the ministry of justice issued a public statement reaffirming its commitment to the independence of the judiciary and condemning those who had called for the dismissal of judges. On his part, the judge who had rendered the decision threatened to withdraw from another case involving a former SWAPO guerilla accused of murder—a move clearly designed to signal to the government that the judicial system could not function properly in an environment of such public pressure. After appeals by the state attorneys on the case, the judge publicly announced that he would stay on, taking the opportunity at the same time to condemn those assaulting and threatening the judiciary.15 In this context, the same judge was also allegedly contacted privately by a ranking government official who both apologized for the behavior of others and urged him to stay on the case.16 Weeks later the matter was discussed in parliament, where the attorney general and minister of justice again reaffirmed the commitment to judicial independence, but also claimed that criticism of the courts should not be criminalized. The confrontation ultimately dissipated in the wake of this. There is little question that the entire episode revealed to the judges that they were operating in a potentially hostile environment (Steytler 1995). Yet, at a broader level, the events also highlight certain patterns that would come to characterize the relationship over time. In the first place, powerholders did not act in a uniform manner toward the courts. Although certain hard-line SWAPO leaders and government officials made aggressive statements toward the judiciary, these were tempered by different messages from other government officials who were more supportive of judicial autonomy. Indeed, interviews with one member of the cabinet from that time indicated that some government officials wanted to do more to publicly support the bench in the wake of the attacks.17 Second, the public attacks represented only one dimension of the relations between the bench and powerholders. As mentioned, senior judges held private meetings with the president, and government insiders allegedly contacted the judge under assault to convey their support. Third, judges themselves were important players in this process. Conscious decisions were made against filing contempt charges that might antagonize powerholders and worsen the situation. Yet rather than sit quietly, the senior judges contacted the executive to express their concerns about the situation. Finally, there is simply no evidence that the courts began to adjust their behavior in the wake of the attacks, even despite the clear hostility to them from certain segments of the population and quarters of government. Less than a year after the episode, for example, the courts declared invalid government

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legislation that sought to repudiate and reclaim a large donation that the colonial government provided to an organization dedicated to promoting the cultures of Namibia’s communities of European descent.18 Despite the clear racial overtones to the case, and the clear challenge to the government’s authority, the courts did not shy away from rendering a decision sure to be met with disfavor by powerholders.19 At a more general level, the decisions from the court in the years that followed were relatively balanced in the number being decided for and against the government. Representation, Transformation, and the Politics of Judicial Personnel Although the aggressive badgering and threats to the courts ceased in the few years that followed the episode in 1991, periodic hostility to the bench from some government and ruling party officials remained a central feature of Namibia’s judicial politics. For example, the very same government official who lambasted the judges in 1991 accused the bench in 1992 of openly supporting the political opposition.20 This came in response to a High Court decision in the lead up to the country’s first local elections that ordered ruling party individuals to cease using language that might intimidate opposition members. In the years that followed, government ministers and legislators continued to openly criticize the bench. During a debate on budget allocations for the judiciary in 1995, one legislator claimed that the judges were abusing their power and called on government to import judges from Cuba to administer justice.21 Later, the labor minister accused the courts of being antiworker,22 while another deputy minister claimed that judges were making democracy a fallacy with their rulings.23 One MP even claimed that the government made a mistake when it reappointed to the bench white judges who had “opposed blacks during the colonial era.”24 Although these public comments represented a threat to the judiciary, the path that the government ultimately took with the courts in the decade after independence continued to reflect high levels of respect for judicial autonomy. This is true despite the fact that certain hardliners within the ruling party and government, many of whom were associated with the public hostility toward the bench, advocated interventions that would have facilitated greater government control over the institution. It is important to keep this in mind in light of events of the mid-to-late 1990s. During that time government undertook efforts to alter the personnel composition of the bench, as well as some of the key rules and institutions affecting the judiciary. Yet rather than reflect an agenda of controlling the bench, they are more properly understood in terms of a sincere desire to transform the judiciary in a manner that made

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126 Judicial Politics in New Democracies it more reflective and representative of Namibian society. Some of those within government pursuing this saw such a transformation as critical for the legitimacy and independence of the judiciary itself. As indicated, the nature of the personnel on the bench at independence and immediately after saddled the judiciary with the image that it was a preserve of white power and privilege. This indeed made it somewhat vulnerable to the public attacks described above. At a more general level, it meant that many in government, themselves committed to the broader goal of undoing the legacy of apartheid, found unpalatable the idea of appointing more white males to the bench. Accordingly, most in government, and several important actors within the judicial system, came to prioritize diversification of the bench. This was so pressing that one white judge appointed to the courts in the early 1990s was purportedly told that he would be the last white judge appointed to the bench.25 This was not to be the case. This agenda of transformation and representation generated two types of government interventions with the judiciary. First, government began to push efforts to appoint nonwhite individuals to the bench. The first black Namibian to reach the bench did so in early 1992. But efforts to appoint more black Namibians to the bench encountered real difficulties. Simply put, there were few local individuals who had the necessary qualifications and capabilities for appointment to the High Court. In the words of one observer, “SWAPO wanted black judges, but there were no black judges.”26 Much as individuals on the Judicial Service Commission were committed to the goal of diversification, they also very strongly prioritized maintaining the standards and reputation of the bench and thus would not endorse the appointment of individuals lacking the necessary qualifications. The immediate solution to this dilemma was to look outside of Namibia for individuals who might serve on the Namibian bench. On the recommendation of the Judicial Service Commission, the president thus began to appoint individuals from Zimbabwe and Zambia to serve on the Namibian courts. From October 1994 to the end of the decade, four such individuals obtained positions on the Namibian High Court. As I will detail, the peculiar status of these individuals as expatriates left them somewhat vulnerable to government pressure at later points. Yet, the appointing of such individuals was never understood—even by close observers and advocates for the judiciary—as a program to create a docile bench, so much as an effort to improve the nature of racial representation. Beyond this, government sought to change some of the basic rules and institutional structures governing the legal profession and judicial system. The first real sign of this emerged in 1995 when the government sponsored and passed two critical pieces of legislation. The first of these, the Judicial Service Commission Act, changed the rules governing appointment to the bench in

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two ways. First, the act required that the commission “have due regard for affirmative action and the need for a balanced structuring of judicial offices” when making recommendations for appointments to the bench.27 Thus the commission was legally required to work for the diversification of the bench. Second, the act expanded the pool of those eligible for appointment to the High and Supreme Courts. Whereas prior to the act only private legal practioners (disproportionately white) could be appointed to the bench, the act made eligible legal practioners who were employed by the state. This included individuals who had served at the magistrate level of the courts.28 As the bill was debated, legislators decried the fact that the courts were too “white-oriented” or remained in the hands of “unpatriotic elements.”29 The second piece of legislation, the Legal Practitioners Act, actually generated more concern in terms of a potential threat to judicial autonomy. The act was ostensibly focused on opening up the legal system to nonwhite lawyers. Central provisions of the act thus enabled lawyers who were employed by the government, or who had received legal training outside of South Africa, to obtain recognition as “legal practitioners,” a designation previously reserved only for private attorneys. Most such individuals were black. Beyond this, the act erased the distinction between legal practitioners and advocates. Prior to it, the Namibian legal profession was legally separated between advocates and practicing attorneys. The former are more specialized and had exclusive rights to appear in the High and Supreme Courts. By erasing the distinction, legal practitioners could practice in the higher courts after passing qualifying exams. The impact of the law on the courts was twofold. First, because it changed the definition of legal practitioner to include a broader collection of individuals, the act expanded the pool from which judges might be selected (Bukurura 2006: 323). Second, because the act changed the composition of the legal profession, it also changed the composition of the statutorily recognized Law Society of Namibia. Prior to the act, the body was made up disproportionately of white lawyers. Yet with the passage of the legislation, black lawyers, many of them employed by the government, made up the majority.30 As the latter body also nominates one lawyer to sit on the Judicial Service Commission, this increased the prospect that a government-friendly lawyer would serve on the body. Indeed, since the passage of the law, the law society representative has been effectively recognized as one of the progovernment voices on the commission. The legislation itself generated substantial outcry from elements of civil society, especially those representing the members of the legal community most affected by it. Claiming that the law represented an intrusion into the independence of the legal system and a lowering of professional standards, some sent petitions to the International Bar Association and the UN Human

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128 Judicial Politics in New Democracies Rights Commission with a view to stopping the passage of the act (Bukurura 2006: 323). In the event, the legislation passed easily given SWAPO control of parliament. The twin projects of appointing more nonwhites to the bench and transforming the institutional structures governing personnel decisions for the bench remained key components of the government’s approach to the judiciary. Yet neither of these projects ultimately translated into manifest interference with the judiciary, as the government remained restrained and responsible in its overall dealing with the courts. The nature of the appointments to the bench helps to bring this into relief. The period after the mid-1990s certainly witnessed greater racial (and gender) diversification of the courts. While part of this was a reflection of expatriate African judges taking positions on the bench, it also resulted from an increased number of nonwhite Namibians going to the courts. The second black Namibian was appointed to a permanent position on the courts in 1996 (the first was appointed in 1992). Others were appointed to serve in short-term capacities as “acting” judges at the High Court.31 By 1999, a black Namibian obtained the position of judge president of the High Court, whereas another three nonwhite Namibians obtained permanent positions on the courts through 2001. At the Supreme Court, from 1992 up until 1998, the position of chief justice was held by a South African of Indian descent. The remainder of the bench was constituted of other judges serving in acting capacities. These included both expatriate judges as well as white Namibians. Yet despite the apparent priority attached to the issue, the process of diversifying the bench was marked by gradualism and restraint. While nonwhite Namibians obtained positions, the diversification of the bench proceeded slowly. Indeed, it was as late as 1999—nearly a decade after independence, that a third black Namibian was appointed to a permanent position on the High Court. And it was as late as 2001 that a black Namibian even sat on the Supreme Court in an acting capacity. As I will discuss below, part of this reflects the power of the Judicial Service Commission, which could restrain whatever impulses the government might have had to pack the court. It also partially reflects the fact that it was very difficult to find suitable nonwhite Namibians to take positions on the court. Although some were available at the magistrate level, black lawyers in the private sector were quite hesitant to take positions on the bench owing to the substantial pay cut they would face in doing so. Still, the government essentially accepted these restraints and eschewed efforts to more aggressively diversify the bench. Related to this, while diversification was a central priority, appointments continued to reflect a concern with maintaining standards on the bench. On the one hand, this meant that if staffing needs arose and no black appointees were available, white judges were acceptable. From the early 1990s until the time

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of writing, white lawyers continued to be appointed in acting capacities as judges for short-term stints on a contract basis. Some also obtained permanent posts, while others turned down offers to go to the bench. On the other hand, there was little evidence that those receiving appointments were being politically vetted. As one observer put it, “the government has wanted blacks and has not been concerned with political credentials.”32 Perhaps as a reflection of this, statistical analysis indicates that there is no evidence that those appointed by the government since the mid-1990s have been any more supportive of powerholders than other judges. The same can be said of nonwhite Namibian judges who have also shown no inclination to favor the government in their decisions (VonDoepp 2008). Finally, the government showed a willingness to back down as necessary when the project of diversification met resistance from those concerned with the independence and quality of the judiciary. Accounts of the 1998 process of appointing a new chief justice illuminate this. The government’s desire to have a full-time chief justice resident in the country, as opposed to one seconded from South Africa, prompted the effort to select a new person for the position in that year. Government, specifically the ministry of justice, sought to appoint a nonwhite to the top judicial post and, by accounts, advocated for an African expatriate serving on the High Court.33 Members of the Judicial Service Commission, however, supported High Court judge president, Johann Strydom, a white Namibian who had served on the bench since the mid-1980s. Although the government had apparent support on the commission in the form of the attorney general and a representative of the law society, the body ultimately recommended Strydom, an assertion of its preferences over those holding power in the executive branch. The decision to deny those in the ministry their preferred choice for chief justice allegedly caused considerable consternation in the executive branch. Some interviewees reported that Nujoma was upset about the decision, while another indicated that individuals from the ministry of justice advised him to not sign the letter from the commission voicing support for Strydom.34 The latter step might have evoked a constitutional crisis. In the event, Nujoma signed the letter and attended the inauguration of Strydom as the new chief justice. Restraint was also evident with respect to the government’s tinkering with the institutional structures governing the judiciary. For example, although the legislation discussed above altered the composition of the Judicial Service Commission, some in government and the ruling party continued to advocate for more substantial efforts to transform the institution. In the mid-1990s, some members of cabinet advocated legislation seeking to transform the Judicial Service Commission to make it more representative of society.35 This goal was later reiterated at a SWAPO party congress, where the party passed a resolution to broaden the composition of the commission36 that actually became

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130 Judicial Politics in New Democracies part of the SWAPO election manifesto in 2004.37 However, this program of changing the commission has never moved beyond the discussion stage, this despite the fact that SWAPO had the legislative majorities to reform the legal structures governing the composition of the body. The one additional area where institutional tinkering took place was with respect to the mandatory retirement ages for justices of the Supreme and High Courts. In 2002, the age was dropped from seventy to sixty-five. The president, however, has the authority to extend the term in office of a judge beyond this age. Some raised concerns that this legislation would increase control of the bench by the executive as choices about whether or not to extend a judge’s term could reflect the presumed loyalties of the judge in question. This might provide judges an incentive to favor the government in their rulings as they approached and passed retirement age. Notably, the legislation was passed only a year prior to Chief Justice Johann Strydom’s reaching the age of sixty-five. In the event, his term was extended by one year. Yet even here, the steps taken did not represent a dramatic overhaul of the institutional relationships between the executive and the judiciary. Indeed, the personnel decisions that followed continued to reflect high concerns for standards and a general hesitation to simply pack the courts with SWAPO supporters toward the end of purchasing a compliant judiciary. This is true despite the fact that the Judicial Service Commission, especially from 2000 forward, came to be increasingly made up of individuals supportive of the government. For example, after Johann Strydom retired and the position of chief justice became vacant, the government first appointed a Zimbabwean expatriate to serve as acting chief justice and then appointed an additional six judges to serve on the Supreme Court in acting capacities. The track record of the Zimbabwean judge was among the more balanced on the court in terms of his decisions for and against the government in previous cases. Moreover, at least half of the other six appointed in acting capacities were individuals who had impeccable reputations for political neutrality. Months later, the government appointed as chief justice a relatively young Namibian judge who was serving as judge president of the High Court and was by all accounts a SWAPO loyalist. At about the same time, however, the government elevated to the Supreme Court another High Court judge known for his independence from the ruling party. Thus while appointments to the Supreme Court reflected some interest in having progovernment tendencies on the bench, these certainly have not been the only, or even the predominant, consideration. The same can be said of appointments to the High Court in the more recent period. Some have gone to individuals known or suspected to be loyal to the government. In November 2004, the post of judge president of the High Court went to an individual who had worked as secretary to the cabi-

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net and as an elections officer for SWAPO. Yet his solid credentials earned him the unanimous endorsement of the Judicial Service Commission. And in his role on the court, he made decisions and voiced opinions at odds with government interests. Other appointments have reflected efforts to simply staff the courts with high-quality personnel, with little apparent concern for their willingness to render decisions contrary to the interests of powerholders. One advocate, while serving on the bench in an acting capacity in 2005, initiated a commission of inquiry into the alleged pilfering of a governmentrun social security fund. Implicated in the scandal were important players in the SWAPO Youth League, some of whom had connections to former president and party leader Sam Nujoma. Despite this, some time after the commission ceased its activities, the very same advocate was allegedly asked to do another stint on the bench. Overall then, the agenda to transform and make the courts more representative of society did not degenerate into a program to pack the courts with SWAPO supporters. Like most governments, those in Namibia sought to place on the bench individuals who shared their preferences and worldviews. But they also prioritized the diversification of the bench as a goal in and of itself and even in cases where those taking judicial positions were not apparent government supporters. Moreover, the government continued to accept the importance of maintaining high standards and capacity, even to the extent that it meant appointing individuals who neither shared the priorities of the ruling party nor fit into their project of transformation. Public Conflict and Court Bashing in the New Millennium Although the government was ultimately restrained when it came to institutional tinkering and personnel choices for the bench, public comments from some government actors remained an area of concern for the judiciary in the period after Namibia’s first decade of independence. Part of this was related to judicial rulings concerning government conduct in the wake of an outbreak of separatist violence in the north of the country in August 1999. Much as they did during the first five years of independence, several powerholders openly criticized and even threatened judges who rendered decisions against the government. Yet even with this mind, actual intrusions on the independence of the courts remained minimal and government behavior continued to suggest a respect for judicial autonomy. One of the more troubling instances of court badgering came in July 2000, in the wake of a High Court ruling against the government in a case concerning the efforts of the ministry of home affairs to detain and deport members of a musical group made up of Angolan refugees. The band had earned the ire of

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132 Judicial Politics in New Democracies government for playing at an opposition rally. In the wake of this, police were instructed to arrest the band members on grounds that they had left their designated refugee camp without permission. Supported by a prominent human rights legal advocacy NGO, the band members applied to the court to challenge the arrest order. The judge hearing the case, a Zambian expatriate, then issued an interim order forbidding the ministry of home affairs from either detaining or deporting the band members. The minister of home affairs responded with a tirade challenging both the authority of the courts and specifically threatening the judge who had rendered the decision. Vowing to ignore the order, he claimed that police would continue to hunt for the band members and bring them back to the camp. He then referred to the judge who rendered the decision, threatening to withdraw his work permit. “Those reactionary judges will be forced to pack and go. I will reconsider their work permits. Judges are not above the law.”38 The response from the key players in Namibia’s judicial politics followed a pattern similar to that observed in earlier periods when the judiciary was publicly attacked. The Law Society, Society of Advocates, and other civil society groups roundly condemned the comments declaring them a threat to judicial independence. The judge who rendered the decision, in turn, recused himself from the case as well as another involving the ministry of home affairs. The judge who subsequently took up the case then directly questioned the government’s lawyer about the comments made by the minister, in an apparent effort to publicly challenge and bring greater attention to the incident.39 Most importantly, however, the chief justice and judge president of the High Court met with President Nujoma and the minister of home affairs. In the wake of this the minister of justice issued a letter reaffirming its support for judicial autonomy, while the minister of home affairs, on the prodding of the president, issued a private apology to the bench. The chief justice in turn publicly accepted the apology and declared the entire episode had reaffirmed the supremacy of the constitution.40 Notably, in the aftermath, SWAPO hardliners continued to issue statements condemning the judiciary as “white controlled” and reactionary. The minister of home affairs came into conflict with the bench again a few months later. In this instance, the issue concerned a case involving the detention and planned deportation of an Angolan man with ties to the Angolan rebel group UNITA, which the government viewed as a security threat in the north of the country. Hearing a petition brought by the man’s son, a High Court judge ordered that he be released from detention. The minister flatly refused to do so. In turn, the man’s son brought contempt charges against him. Months later, with SWAPO youth league members demonstrating outside of the courts, the minister was convicted of contempt and strongly reprimanded, while the

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government was ordered to pay all the costs of those who brought the contempt charges. Subsequently, the courts ordered the release of the man from custody. The government ultimately complied with the rulings (Bukurura 2006: 324). For SWAPO hardliners, such decisions solidified their image of the courts as reactionary and unpatriotic elements that would interfere with state security and efforts to undo the legacy of apartheid and inequality. And indeed, from 2001 to 2004 in particular, the courts became a more frequent target of public attacks. SWAPO officials urged government to refuse to comply with court eviction orders against land settlers who were encroaching on private farmland.41 Public demonstrations called for judges who rendered such decisions to resign.42 Judicial rulings concerning the cases of those accused of treason for participating in separatist violence in the north of the country came to represent a particular source of contention. Court rulings in favor of the accused generated vitriolic comments from SWAPO and government officials. Judges, they claimed were “saboteurs” who hated the ruling party, while a prominent member of the SWAPO youth league declared that judges who ruled contrary to the expectations of the majority “must pack and go.”43 It was in this context that SWAPO renewed its calls to transform the Judicial Service Commission as described above. Such calls took place despite the fact that several of the judges who had rendered antigovernment decisions were themselves nonwhite Namibians who had been appointed in the context of efforts to diversify the bench and in the wake of earlier institutional changes that expanded the power of the executive over the Judicial Service Commission and broadened the pool of those eligible for appointment. Yet the bark coming from certain corridors of power was far worse than the bite. Although the public comments clearly represented attacks on the judiciary, interventions from the government never went any further. For example, there is simply no indication that powerholders sought to influence the court through shadow personal communications or via material inducements. Virtually no attorney raised concerns about the integrity of the bench, while former judges insisted that there had been no “hanky panky” with the bench from government. Beyond this, as I have indicated above, the government generally eschewed institutional tinkering and personnel decisions that might have undermined judicial autonomy. Indeed, given the comments by hardliners in the government and ruling party, certain personnel decisions that took place since 2001 are quite striking. Consider the case of Elton Hoff, at the time of writing a judge of the High Court. Hoff, a mixed-race, or, in local terms, “colored,” Namibian was appointed as acting judge from the magistrate level in early 1999. In that capacity, he rendered the highly visible decision declaring the minister of home affairs in contempt of

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134 Judicial Politics in New Democracies court, generating condemnations of him from SWAPO stalwarts. Three weeks after that decision, he received his permanent appointment to the High Court, signed by the president. When government and judicial officials were asked about the public attacks on the judiciary, a number of themes were raised suggesting that those attacks represented a subsidiary, not primary, component of government relations with the judiciary. First, the attacks were seen to be the work of “loose cannons” who did not represent the broader government and were as concerned with appealing to the masses as they were about the judiciary.44 “The outbursts,” said one judge, “are more about noise than they are about strategy.” Second, as indicated, the larger pattern continued to indicate restraint and respect for judicial autonomy. With the exception of the notable case discussed above, judicial decisions were followed. And government proved willing to restrain aggressive elements, as indicated when Nujoma elicited an apology from the minister of home affairs in the wake of his comments about foreign judges. One senior judge maintained further that there was always an open door to the president who was very effective in reassuring the judiciary in the wake of such attacks. So much was this the case that the outbursts ceased to bother this judge.45 Other judges voiced similar sentiments. Finally, although these pubic comments seemed to be quite frequent in the early part of the decade, they dissipated considerably by the middle. While this was likely a partial reflection of the change in the administration from Sam Nujoma to Hifekepunye Pohamba, the more proximate reason lay in the change in personnel at the top of the courts. By 2004, the offices of judge president of the High Court and chief justice were both occupied by individuals with solid SWAPO credentials. This necessarily inoculated the courts against many of the previous public charges that highlighted the racial, national, or partisan composition of the bench. Indeed, no public outbursts against the bench took place from 2005 to 2008.

Court Behavior Perhaps as a further indication of the relative autonomy enjoyed by the courts in Namibia, the general behavior of judges, with a few notable exceptions, offered little indication of an inclination to defer to government interests. Consider, in the first place, the pattern of decisions at the High and Supreme Courts over the first decade and a half of Namibia’s independence. Statistical analysis of a dataset of 244 individual judicial decisions over this period revealed that, as a whole, judges were quite willing to render decisions that contradicted the government’s interests. Included in the dataset were all the judge

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decisions from cases that could be located where the government and its officials, the ruling party (SWAPO), or entities formally affiliated with the party either presented arguments or had an apparent interest in the outcome of the case. Excluded from the dataset were sentence and verdict decisions in simple criminal cases, although cases involving criminal procedure are included. The key findings indicated that the level of government interest in the case had little bearing on whether or not judges ruled for or against the government. To determine this, each case was scored by two Namibian observers of the courts to reflect the presumed level of interest the government would have had at the time that it was being heard, much as was done for the Malawian and Zambian cases. Both observers had considerable experience working in the judicial system in Namibia. Their scores were then averaged to create an overall government-interest score. Multivariate analysis indicated that such government-interest scores did not significantly affect the likelihood of decisions going for or against the government. Beyond this, the findings also indicated that judges were no less likely to decide against the government in the period after 2000 when some of the most aggressive attacks on the bench took place (VonDoepp 2008). Notably, the findings also indicate that High Court judges were more willing to render decisions against the government, suggesting perhaps that Supreme Court judges were hesitant to do so. Yet this is not supported by further evidence. Table 5.1 provides the distribution of progovernment versus antigovernment decisions by individual Supreme Court judges by the different scores on the government-interest variable described above (scores are rounded up to whole numbers; no cases were ranked as “1”). As is evident, the category of decisions that were the least likely to be decided in government’s favor were those in which government presumably had the greatest interest. As tendencies to side with government vanished in high-interest cases, it seems quite problematic to suggest that judges on the Supreme Court feared powerholders in other branches (VonDoepp 2008). Table 5.1 Namibia Supreme Court Decisions, 1990–2005, by Level of Government Interest in Case

Government-Interest Variable

Progovernment

Antigovernment

2 3 4 5

3 6 19 6

0 3 4 19

Source: VonDoepp (2008).

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136 Judicial Politics in New Democracies Of equal interest, for the most part, individual judge characteristics had little bearing on the likelihood of a progovernment or antigovernment decision. Specifically, white judges were no more (or less) likely to side with government in their rulings than other judges; acting judges (those serving on short-term contracts renewable by the government) were no more likely to side with the government than permanent judges; and, more recent government appointees were no more likely to side with government than those appointed in the first few years of independence. The one exception to these tendencies is found in the decisionmaking pattern of judges appointed from foreign countries, especially those appointed in the mid-to-late 1990s as part of the effort to transform the racial composition of the bench. As indicated, these judges were the particular target of attack at the hands of the minister of home affairs in 2000. Although the analysis indicates that foreign judges appointed after 1993 were no more likely to side with government, it also reveals that after 2000 they were. In general, decisions by such judges after 2000 were about 20 percent more likely to be decided in government’s favor (VonDoepp 2008). To be sure, whether such patterns reflected judges’ responses to the pressure applied to them in the form of the public threats, or other dynamics, remains an open question. While foreign judges were attacked and threatened in 2000, many of these judges had reached, or were approaching, retirement age by the period after 2000. This made their tenure on the bench subject to the discretion of the president who could extend retirement ages or appoint them to serve in an acting capacity.46 Thus there may have been added incentives to curry favor with the government. In any case, while this does suggest limits to judicial independence in Namibia, it must be considered against a larger pattern of court assertiveness vis-à-vis powerholders. It also deserves mention that autonomy remained apparent even after apparent SWAPO supporters obtained positions as chief justice of the Supreme Court and judge president of the High Court. The judge president quickly gained a reputation as an advocate for the judiciary, appealing to the government for more resources to improve court administration and conditions of service to attract more judges to the bench. He also demonstrated a clear willingness to take actions that were contrary to government interests. This included a decision in March 2005 that ordered a recount of national elections won by SWAPO and supporting the formation of a commission of inquiry to investigate the shady dealings of a company associated with the ruling party that lost huge sums of money belonging to the government social security fund. Beyond this, by most accounts, both the judge president and the chief justice remained strongly committed to improving the capacity of the courts as a primary objective. This partially helps to explain the ongoing appointment of individuals, both in acting and permanent capacities, who showed no incli-

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nation to support the government in rulings. The vast majority of lawyers and former judges interviewed by the author were decidedly upbeat about the prospects for judicial autonomy in light of the behavior of the leading members of the court in these respects. In short then, judicial actors displayed high levels of behavioral independence during the first fifteen years of Namibia’s independent history. Coupled with the larger pattern of amicable relations between the government and the judiciary, the picture that emerges from the country is of a bench that enjoyed relatively high levels of autonomy for that fifteen year period. The task now is to explain this pattern.

Restraint and Respect: Namibia in Comparative Perspective Namibia presents a puzzle for thin theoretical perspectives on judicial autonomy. In no other case presented here did conditions appear so ripe for government interventions into judicial affairs. With electoral uncertainty low, there is little question that powerholders expected to remain in power for at least the medium term. Thus, they had no incentives to invest in judicial institutions as part of an “insurance policy” to protect them and their policies in the event that they fell out of power. If anything, they had incentives to enfeeble judicial institutions that represented one of the few checks standing in the way of their program of transforming Namibia. That the courts were initially staffed by individuals whose preferences seemed to run counter to that program would have added to those incentives. Beyond this, the distribution of power in Namibia’s institutions favored the ruling party and the president. This gave the key powerholders the means to intervene in the courts in a manner that undermined judicial autonomy. Yet restraint, responsibility, and respect for judiciary autonomy have been the watchwords in the Namibian case. The basic institutions governing the exercise of judicial power remained intact and unlike the case in Zambia, there were no threats to change these. Where institutional tinkering took place, it concerned the processes governing the staffing of the courts and changes here did not so much undermine the autonomy of the courts as enable the diversification of the judicial system. Appointment considerations continued to prioritize issues other than the political loyalties of those serving on the bench. And, unlike the case in Malawi, judges were not targeted for removal owing to their decisions in political cases. Also in contrast to the other cases, there is no evidence that the government sought to influence judges through informal connections or efforts to embed them and their relatives in webs of patronage. While there certainly was public badgering of the

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138 Judicial Politics in New Democracies courts, parallel to such badgering was a pattern of amicable relations between the courts and executive. Government actors have stood up for the courts when judicial officers were attacked by other powerholders, they privately communicated with judges to convey support and reassure them of commitments to judicial independence, and they maintained open lines of communication that reinforced healthy relations between the branches. In order to comprehend the patterns in the Namibian case relative to those in Malawi and Zambia, we need to then set aside the thin framework and return to the three factors highlighted throughout this book. Attention to the nature of the larger political system, the extent of “judicialization” in the political system, and the role of judges helps us to understand why powerholders adopted the restrained and responsible approach with respect to the judiciary. Importantly, while these three issues played a central role, they should not be considered in isolation either of each other or of other contextual factors that shaped the experience of the courts in Namibia. In the sections that follow I begin by bringing attention to two such contextual factors: the nature of the institutional structures governing judicial appointments and the broader demographics of the legal system in Namibia. Thereafter, I systematically discuss each of the above three factors as they operated in the Namibian case to shape the pattern of government-judicial relations. Contextual Factors: Institutional Structures and Personnel Constraints When close observers of the Namibian courts reflect on the experience of the judiciary in the country since independence, they often bring attention to two factors that help to account for the personnel choices made for the bench. The first of these concerns the power of the Judicial Service Commission. The second concerns the real challenges leaders faced in terms of locating and appointing loyalists to the bench. Both of these certainly shaped the experience of the courts; however, they have impacted only one dimension of executive-court relations. And, even here, they do not fully account for the patterns observed. As indicated, the Judicial Service Commission emerged from the independence period in a far more powerful position than those in the other two African countries reviewed. In contrast to its counterparts in Malawi and Zambia, it holds some control over who is appointed to the position of chief justice and has influence over the appointment of all other permanent judges appointed to the High and Supreme Courts. Moreover, like the Malawian case, but unlike the Zambian, it has considerable say over the removal of judges from the bench. Beyond this, the composition of the commission reflects the desire of constitutional designers to insulate it and its activities from

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the executive and legislative branches (Steytler 1995: 496). The commission’s five members are the chief justice, a judge appointed by the president, the attorney general, and two representatives from the professional organizations of the legal profession. For the first few years of independence, certainly through 1995 before the passage of the Legal Practitioners Act, the commission was thus constituted of individuals not necessarily disposed to support the executive. The legal profession remained in decidedly nonSWAPO hands, the chief justice was first a white Namibian and then a South African with a reputation for independence, and the judge that might be appointed by the president came from the pool of judges first approved by the commission. So much was this the case that one observer from the mid-1990s commented that, “the power of appointing the judiciary is firmly in the hands of the judiciary and the organized legal profession” (Steytler 1995: 496). To be sure, this served the cause of checking whatever impulses the government might have had to pack the courts with SWAPO loyalists or simply elevate those that were perceived to be supportive of the government. Many of those interviewed by the author maintained that court packing was simply not an option for SWAPO given the independence and power of the commission. This was especially true in the initial years after independence, but also in the more recent period. The latter is especially striking given that, over time, the composition of the commission came to increasingly favor government. From 1995 forward the government could presumably count on the support of at least one of the legal profession representatives, the attorney general, and perhaps even the judge appointed by the president to serve on the commission. Still, as indicated above, the commission continued to check the power of the executive over appointments. This is seen in how it exerted its preferences over the appointment of a new chief justice in 1998, and also in its later ongoing prioritization of capacity and quality considerations when recommending appointments to the bench. This certainly helps us to understand the limited ability and efforts on the part of the government to staff the courts with loyal supporters. At that, the power of the Judicial Service Commission only offers limited insight into the ongoing autonomy of the judiciary in Namibia. For one, personnel controls represent but one means of managing the judiciary. And to the extent that governments actually seek to control judicial institutions, but can not or opt not to use personnel controls, other means may be available. These might include restructuring institutional relationships and delimited spheres of authority, using internal administrative controls, or relying on informal mechanisms to induce or scare judges into obedience. As we have seen, governments in Malawi and Zambia similarly were limited in the extent to which they could rely on personnel controls to manage the judiciary. They nonetheless employed other tools. By extension, although Namibia’s powerholders were restricted in terms

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140 Judicial Politics in New Democracies of their abilities to pack the courts and purge it of opponents, this did not preclude them from taking other steps to undermine judicial autonomy. In the final analysis, they did not take such steps. In this respect, it bears mentioning that government could certainly have pushed harder on appointments than it actually did. Consider again the circumstances with respect to the selection of a new chief justice in 1998. The constitution clearly states that the president appoints judges, including the chief justice, on the recommendation of the commission. When the commission recommended an individual that was contrary to government preferences, the president could have said that he did not accept their recommendation. He was allegedly advised to do that, risking the possibility of a confrontation. Instead, he acquiesced, this despite the fact that he had enormous popular support and full backing of the legislature. The latter would likely have supported him had he sought to change the constitutional rules governing appointments. Further, to foreshadow a point I raise below, the very vibrancy of the Judicial Service Commission is itself reflective of the political environment. In particular, it is less likely that the commission would have flourished and asserted itself in a setting where neopatrimonial tendencies were more apparent. As indicated, persons on the commission continued to prioritize essentially nonpolitical considerations when recommending individuals for appointment to the bench—sometimes in contradiction to the expressed wishes of those in the executive branch. Such activities would have been far less likely in a neopatrimonial setting where political considerations tend to suffocate most other priorities and deference to the big man is a primary means of survival. Moreover, in a neopatrimonial setting, personal relations and informal networks could have more easily crossed boundaries between the executive and the judiciary, as they allegedly did in Malawi and Zambia. Because these have been relatively weak in Namibia, judicial institutions, like the commission, have been more able than those in Malawi or Zambia to retain their vibrancy and autonomy. While the relative weakness of neopatrimonialism might not account completely for the vibrancy of the commission, the absence of such tendencies certainly enabled its behavior relative to counterpart institutions in Malawi and Zambia. The second factor that helps to account for the personnel choices made for the bench in Namibia concerns the challenges that the government faced in terms of finding individuals to appoint to the bench. As I have mentioned, government faced persistent problems not only in finding nonwhites to appoint, but also in finding erstwhile loyalists. In the initial period after independence, such individuals were simply lacking among the private sector lawyers who might have been eligible for appointment to the bench. After 1995, government was able to appoint magistrates, but even here, the talent pool was limited. And more recently, although there may have been private sector lawyers

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that the government would have liked to appoint, financial considerations have dissuaded some from taking those positions. Thus while the government might have wanted to pack the courts with supporters, such supporters were either absent or not willing to go to the bench. Both of these circumstances help us to comprehend why powerholders were constrained in terms of appointing people to the bench. However, it does not take us much further than that. Malawian and Zambian executives were similarly constrained with respect to finding suitable individuals to appoint. Yet they interfered with the autonomy of the courts in other ways. Again, their Namibian counterparts were more restrained. Thus while these factors help us to understand one dimension of the government’s behavior with respect to the judiciary, they do not allow us to account for its comparative restraint and respect for judicial autonomy. To make that more comprehensible, we need attention to the other three factors informing the inquiry. Compared to Zambia and Malawi, the relative absence of neopatrimonial tendencies and low levels of judicialization in Namibia minimized incentives for political leaders to interfere with the courts. At the same time, judges, taking advantage of this, undertook steps to shore up their own autonomy. Systemic Features: The Weakness of Neopatrimonial Tendencies In previous chapters, I maintained that the peculiar character of the Malawian and Zambian political systems shaped the character of their executive-judicial relations. The presence of neopatrimonial tendencies within these systems, I argued, amplified executive impulses to intervene in and undermine the courts. Owing to the risks associated with being in power and the high costs of being out of power, they were unwilling to tolerate the presence of institutions that might undermine their objectives. My argument here is that the pattern of restrained executive behavior in Namibia, compared to those observed in Malawi and Zambia, is partially accounted for by the relative weakness of neopatrimonial tendencies in the country. As leaders have been more secure they have been more willing to tolerate the presence of institutions that might interfere with their dominance of the political order. Beyond this, they have been willing to tolerate the presence of individuals within the state who have worked to reinforce judicial autonomy, even when it appears to contradict their interests. Making this argument demands, in the first instance, that we establish that neopatrimonial tendencies have in fact been relatively weaker in Namibia than in the other two countries. A review of the key aspects of neopatrimonial politics provides a basis to do so. Neopatrimonial systems are associated with discrete

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142 Judicial Politics in New Democracies sets of practices. These include presidential dominance of politics, clientelism, usage of public resources for political purposes, and violence and coercion. Beyond these practices, neopatrimonialism is associated with certain tendencies in political systems, namely corruption, insecurity for rulers, and fluidity in political allegiances and loyalties. While it is difficult to measure the extent to which the unique practices associated with neopatrimonial politics are operating in a given system, the tendencies highlighted are less problematic. Corruption, fluidity, and leader insecurity can all be roughly measured across the three countries we are examining47 and allow us to compare the degree to which Namibia is indeed different. To begin, corruption levels appear lower in Namibia than in the other countries. The most widely used measures of corruption are Transparency International’s Corruption Perception Index Rankings. If we compare Namibia to the other two countries, the results are unequivocal. Namibia’s rank ranges between 28 and 54 between 2001 and 2005. For the same period, Zambia ranges between 75 and 107, while Malawi ranges between 61 and 97.48 Second, political allegiances and alliances have been far less fluid in Namibia than in Malawi and Zambia. To measure this, I compared the number of cabinet ministers and party officials who either defected or were purged from the ruling party and government during the first ten years of democratic rule in each country. In each country, only one individual held power during the first ten years. Importantly as well, in each country this one individual attempted to maintain power by amending the constitutional limitations on holding more than two terms of office. Only Sam Nujoma was successful in this respect. Again the differences are striking. Namibia witnessed the departure of one cabinet-level official from the ruling party during the first ten years of independence and democratic rule. By contrast, Zambia witnessed thirteen before the close of the first three years of democratic rule, and well over fifteen before May 2001, when it became apparent that Frederick Chiluba would not stand again for a third term.49 Malawi, on the other hand, witnessed the departure of at least six key individuals from the ruling UDF from the inauguration of Bakili Muluzi to the point where he shelved his plans to try for a third term. Finally, leadership has been far more secure in Namibia. Most importantly, evidence of extra-legal attempts to overthrow the executive have been far less apparent in Namibia than in the other two countries. In Namibia, there has been only one recorded plot to overthrow the government. This, referred to above, took place in 1991 when several right-wing racists planned to violently overthrow SWAPO and Sam Nujoma and reinstall white rule. In Malawi, in at least three instances, stories have surfaced of plots to overthrow the democratically elected governments. The first of these took place in 1994, shortly after Bakili Muluzi was elected president. The second was an alleged plot to assassinate Bingu wa Mutharika masterminded by his vice president. A

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third such rumor, of a plot to overthrow Mutharika, emerged in May 2008. Zambia has also experienced three such episodes. The first was an alleged plot by former UNIP elements to engage in a program of sabotage to undermine the government. This led to the enactment of a state of emergency in 1993. There was a failed coup attempt in 1997, and, in 2002, rumors circulated about a suspected plot to violently overthrow President Mwanawasa. The relative weakness of neopatrimonial tendencies in Namibia helps to explain why executive-judicial relations have had a different character. Two issues stand out in this regard. First, owing to the absence of acute neopatrimonial tendencies, leaders in Namibia have had weaker incentives to interfere with and undermine the judiciary. In Malawi and Zambia, as we have seen, leaders faced persistent threats to their staying in power, whether those threats came in the form of plots to remove them through extra-legal means, impeachment efforts, or legal efforts to declare their electoral victories null and void in the courts. Beyond this, leaders faced potentially high costs in being displaced from power. Not only would they lose access to key sources of livelihood, they also faced the great risks that tend to accompany the title of “former president” in these polities. As the courts played an important role in their ability to manage those threats and stay in power, they had to prioritize controlling them. Yet in Namibia, there have been few threats to leaders’ holds on power and no apparent high costs in losing power. Accordingly, even if the courts signaled that they were not wholly supportive of the executive, this mattered less than in the other contexts. Hence, leaders could more easily tolerate the presence of relatively autonomous judiciaries. To be sure, these relatively weak incentives to intervene in the courts were reinforced by other features of the Namibian context. As I discuss below, the fact that key political questions were not judicialized in Namibia also helped to minimize incentives to intervene in the courts. Beyond this, it can be suggested that the character of the electoral marketplace limited incentives for judicial manipulation. Namibia’s leaders faced little prospect of being removed via elections. In each of the electoral contests held since independence, the incumbent party candidate for president won over 75 percent of the votes casts. Combined with the limited threats of being displaced via nonelectoral means (coups, impeachment, etc.), this reinforced their security. Because they dominated the electoral marketplace, leaders had fewer incentives to intervene in the judicial institutions that often serve as the final arbiters of electoral contests. The second reason that the relative absence of neopatrimonial tendencies is important lies in the kinds of political and ideological agendas that guided state action in Namibia. In neopatrimonial contexts, where survivalist impulses predominate, political considerations tend to trump all other priorities within the state. Although players in the state apparatus may have specific

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144 Judicial Politics in New Democracies ideological preferences, these players and their goals tend to disappear as leaders work to ensure power and longevity. For example, some within Frederick Chiluba’s first cabinet strongly opposed the enactment of a state of emergency in wake of an apparent plot to overthrow the government in 1993. Seeking to avoid a return to the authoritarian practices of the single-party era, they claimed that the move was unnecessary and inconsistent with the democratic (and liberal) dispensation they had fought for. Within eighteen months, two of those who had voiced such arguments, both of them having served as legal affairs ministers, were out of the government.50 On a broader level, although both Mutharika in Malawi and Mwanawasa in Zambia came into office with presumably sincere intentions of fighting corruption, efforts against corruption floundered as leaders sought to consolidate political power. Principled goals were sacrificed on the altar of the political considerations that predominate in neopatrimonial polities. Yet where neopatrimonial politics is less central, different agendas and priorities can operate within the state. In Namibia, while pragmatic political considerations guided government actions, ideological tendencies also played a role. One of these, as previously described, involved a program to transform Namibian society and institutions in a manner that would undo the legacy of apartheid and the marginalization of blacks. But there also existed within the state a desire to see Namibia succeed as a constitutional and liberal democracy. Individuals who embraced such positions did not always enjoy political support as they took sometimes unpopular positions that ran against the political and ideological priorities of others in government. Still, they persisted and played a role in promoting judicial autonomy. If Namibian politics had been more neopatrimonial in character, it is unlikely they would have been able to do so. One clear example of this is the perception among judges that there were always people in the government who were keen to “protect” the courts. As indicated, when certain powerholders publicly attacked judges, some members of government would either publicly support the courts or offer private reassurances to judges of government intentions. Stories of cabinet-level interactions from the first ten years of Namibia’s independence indicate moreover that certain individuals consistently fought for the judiciary when others in government sought to increase executive influence over the institution. One former cabinet official recounted that members of cabinet had consciously held at bay the efforts of certain others who wanted to introduce legislation changing the composition of the Judicial Service Commission—a move that allegedly had the support of the president.51 One advocate for the judiciary allegedly went so far as to say that the judiciary should not be discussed in cabinet as this interfered with the separation of powers.52 Others recalled efforts by cabinet members to restrain the president from doing things that would

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have brought the executive into confrontation with the judiciary, thus putting the rule of law at stake. Indeed, the failure of the government to effectively push its preferred candidate to the position of chief justice and the president’s later decision to acquiesce to the recommendation of the Judicial Service Commission likely reflected the influence of individuals in government who were committed to preserving the integrity and independence of the court. To be sure, the actions of such persons may have brought them the wrath of the president and others. Nonetheless, they took the steps they did because of a commitment to the rule of law and democracy in Namibia. The Limited Judicialization of Politics In both Malawi and Zambia, the judiciary has been called upon to decide central political questions. This, in turn, served to shape executive interests with respect to the courts. Given that the judiciary effectively obtained the power to determine the fortunes and fate of those in the executive branch, leaders had to prioritize controlling the institution as a means to preserving their own authority and longevity. Yet in Namibia, fundamental political issues concerning who should rule, for how long, and with what limits remained outside of the judicial sphere. As a result, government has been less concerned with the institution. To be sure, in referring to the limited judicialization of politics, I do not mean to suggest that courts avoided venturing into the political thicket. They certainly handled cases of political importance, many of which were of major interest to the government. The key issue is that they were not faced with rendering decisions that carried implications for the fate and fortunes of those holding power in the executive branch. This is quite evident when we compare the types of “high interest” cases the courts were called upon to hear, as compared to situations in Malawi and Zambia. Malawi’s Supreme Court has been asked to determine whether the government’s primary opponents should be jailed on murder charges, whether the government had the authority to strip economic resources from opponents, whether elections were free and fair, whether the president could fire his vice president (who had allegedly plotted to overthrow the government), and whether the speaker of parliament could remove from the assembly most of the president’s supporters. All of these issues had major ramifications for the power and longevity of the executive. In Zambia, court cases have addressed whether the government could amend the constitution without a referendum, whether the government could detain opposition politicians accused of plotting a coup, whether the president was eligible to stand for reelection, whether the election of the president was free and fair, and whether parliament could strip the immunity against prosecution granted to the former president, a key opponent of the incumbent.

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146 Judicial Politics in New Democracies In Namibia, Supreme Court cases simply did not address such fundamental issues. The cases considered to be high interest dealt with issues such as efforts to try those involved in separatist violence, the extent to which the attorney general could control the chief government prosecutor, and government legislation seeking to renege on contractual obligations of the colonial government. Other high interest cases dealt with internal party conflicts, efforts to charge the minister of home affairs with contempt, and petitions by opposition parties concerning elections. Although these dealt with important issues, none of them touched upon the power or fate of those in authority. Indeed, even cases concerning the conduct and outcome of elections were not highly important to the government given that SWAPO dominated every contest. The result of this limited judicialization was that the judiciary itself did not become a central concern for powerholders. In interviews, observers of judicial politics regularly brought up this theme. One judge commented, “the judges have never been in their way, so SWAPO can live with judicial independence.” Another maintained that the reason the government had been “pussy-footed” with the courts was that “challenging the judiciary was never necessary.” The judiciary had been an “irritant, but not a threat.” Accordingly, government was not very interested or “simply did not care about” the judiciary. In short, as Namibia’s judiciary avoided the task of determining major political questions that went to the heart of the ruling elite’s agenda and power, they were neither substantially threatened nor interfered with by powerholders. Although it is beyond the scope of this book to fully analyze why Namibia witnessed comparatively limited judicialization of political questions, it is useful to briefly consider the question—especially as it raises issues that touch on the project’s theoretical concerns. One of these involves the ways that levels of power dispersion affect dynamics between majoritarian institutions and the subsequent judicialization of politics. The experiences of the countries in this study suggest that high levels of power dispersion, because it often leads to divided government, can be one reason that key political questions become judicialized (Tate 1995: 31). In Malawi, where power has been dispersed, divided government has been common. In turn, disputes between the legislature and the executive have generated a number of high profile cases within the judicial system. In Namibia, by contrast, power remained concentrated. As interbranch disputes have remained minimal, the courts avoided venturing into this political thicket. Closely related to this, limited electoral competition, within a functioning democratic system, seems to have also minimized prospects for judicialization. Where electoral contests are close, the courts are frequently called upon to decide questions concerning electoral processes, if not the outcomes of contests. This has clearly been the case in Malawi and Zambia where courts have

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adjudicated issues concerning media time, voter registration, polling days, candidate eligibility, the composition of electoral commissions, and the results of elections. Because many of the contests have been close, rulings on such issues can have substantial impacts on the fortunes of political players. Indeed, where decisions pertain to parliamentary elections, court decisions can even affect who controls the legislature. Thus the judiciary is more likely to play a role in electoral contests and more likely to substantially affect political outcomes in the event that electoral contests are close. By contrast, in a situation like that in Namibia, both of these are less likely. Given the dominance of one contestant in those elections, opponents have little to gain by challenging in court the processes leading up to elections. And in the event that they lose, they have little interest in challenging the results. A rerun of a contest will likely produce the same outcome where one party, like SWAPO, dominates the electoral marketplace. This helps to explain why electoral cases have been less common and less significant in Namibia. In this respect, it appears that high electoral certainty decreased levels of judicialization. The extension of these arguments is that dispersed power and electoral uncertainty may be less conducive to judicial autonomy than thin theories suggest, while concentrated power and electoral dominance by a single power may be less deleterious. As the latter situation decreases the prospects for the judicialization of politics, it can decrease the prospects for interference with the bench by political actors. By contrast, dispersed power and electoral uncertainty, because they can increase the likelihood that the courts are asked to adjudicate important political questions, can pique executive interest in managing judicial power. The limitations to thin theoretical perspectives become even more apparent with these considerations in mind. Judges as Active Players Finally, it is important to consider how judges themselves shaped the experience of the judiciary. As I indicated earlier, judges can affect the course of executive-judicial relations in two ways. First, via their decisions in political cases, they send signals about their willingness to assert their authority in a manner that undermines the interests of powerholders. This in turn affects the utility that those powerholders assign to leaving the courts independent. As we have seen in the Malawian and Zambian cases, when the courts have signaled their willingness to interfere with executive priorities, those executives took steps to undermine the independence of the courts. Second, judges’ behavior outside of court rulings can affect the extent to which judicial autonomy develops. By taking steps to build the legitimacy and capacity of the courts, or by building positive relationships with key political actors, judges can minimize the prospect that powerholders interfere with the

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148 Judicial Politics in New Democracies courts. Intuitively, judges can also engage in behaviors that undermine court independence. As discussed in the Zambian case, one judge obsequiously apologized to the president after being badgered by him for his decision in one case. This led to calls for his resignation by the law association. Meanwhile, in the face of such badgering by the executive, the chief justice of the country remained publicly silent—a step that perhaps reinforced the perception of executive dominance over the courts in the country. As discussed, there is no evidence that the courts “signaled” deference to executive priorities in the Namibian case. Thus, the restraint on the part of the executive toward the courts cannot be attributed to any sort of passivity from the courts. What is evident, however, is that Namibia’s judges played a positive role in support of judicial autonomy through other actions. Judges worked, for instance, to develop and maintain amicable relations with the executive. Consider the responses of senior judges to the first public attack on the courts in 1991. Although some within the judiciary wanted to charge the SWAPO official who orchestrated the attack with contempt, the senior judges chose to meet directly with President Nujoma. In that meeting, they received private assurances from the president concerning support for judicial independence. These were then followed up with public statements in support of the judiciary from the minister of justice as well as other private communications with the judges. A similar pattern ensued in the wake of other public attacks on the bench. For example, in the wake of public threats against foreign judges in 2000, senior judges asked for a private meeting with the president. This led to a public statement in support of the judiciary by the executive and a private apology from the minister who had attacked the judge. Judges who were part of these interchanges were quite conscious of the fact that amicable relations were themselves a means to the end of protecting the courts. As one put it, “We had a good relationship with Nujoma. It was initially cool, but it got warmer over time. That helped the relationship between the branches.”53 One of the more important benefits was that it involved open lines of communication with the executive that could be activated in the event of tensions between the branches. Without these, relations could have soured and conflict could have escalated. To be sure, some credit for this situation also goes to members of the executive branch who worked to cultivate the relationship. In any case, the combined efforts of judges and government officials served to promote the cause of judicial autonomy. It is also notable that individual judges took steps to signal their displeasure with government badgering when it took place. As I mentioned above, the judge attacked in 1991 threatened to recuse himself from another politically charged case in the immediate aftermath of those attacks. Some interpreted his very public moves as an effort to communicate to the government the potentially high costs of interfering with the bench. Another judge publicly berated

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an attorney acting for the government in the aftermath of the attack on foreign judges in 2000. And judges certainly did not shy from finding the minister of home affairs in contempt of court for failing to implement a court order. Notably, judges were often supported in these kinds of efforts by elements of civil society that rallied to the defense of the courts in the wake of public comments about the bench. Legal advocacy and human rights groups, but most notably Namibia’s law associations, remained very outspoken and actively condemned government actions that threatened judicial autonomy. Quite routinely the press carried releases from these associations that brought public and sometimes international attention to aggressive government actions. In this respect, the larger legal complex, as some scholars call it (see Halliday, Karpik, and Feeley 2007), was itself an important advocate for judicial independence in the country. While such civil society activism was also evident in Malawi and Zambia, it was not necessarily paralleled by a similar public role from judges in defense of autonomy.

Conclusion The combined effect of all of these factors was that the government in Namibia never developed a major interest in controlling the courts. As a result, the judiciary in the country ultimately came to enjoy high levels of autonomy. This has remained true, despite the fact that power has remained concentrated in the hands of one political party, and despite the fact that the courts have shown no inclination to defer to government in the rulings that come before them. Should circumstances change, with neopatrimonial tendencies becoming more apparent and judicialization increasing, the experience of the judiciary may turn out to be quite different over the next fifteen years of Namibian history.

Notes 1. The notion of survivalist impulses operating in these systems derives from Migdal (1988). 2. See Naldi (1995). The author gratefully acknowledges Dunia Prince Zongwe who brought attention to this point. 3. For a review of issues relating to constitutional development see Diescho (1994). 4. See Diescho (1994: 37) for a description of these. See also O’Linn (2003: 375). An interview with a former cabinet official in April 2006 corroborated this. 5. These were Professor Gerhard Erasmus, Professor Marinus Wiechers, and Advocate Arthur Chaskalson SC (later to become chief justice in South Africa, i.e., president

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150 Judicial Politics in New Democracies of the Constitutional Court). The author acknowledges Dunia Prince Zongwe who brought attention to this point. 6. See O’Linn (2003: 179–281), and The Namibian, July 22, 1994. 7. Interview with former cabinet member, May 2006. 8. Interview with former cabinet member, April 2006. 9. The Namibian, April 12, 1990. 10. The Namibian, September 20, 1991; see also Steytler (1995). 11. The Namibian, September 20, 1991; Steytler (1995). 12. The Namibian, October 18, 1991. See also Steytler (1995) for a review of these events. By one account, SWAPO activists at one rally called for the death of the judge. 13. See articles 78, 2, and 3 of the Namibian constitution. 14. Interviews with former judicial officers, May 2006. 15. The Namibian, October 23, 1991. 16. Interview with former judicial officer, April 2006; interview with former cabinet official, May 2006. 17. Interview with former cabinet minister, April 2006. 18. This was later overturned by the Supreme Court. 19. See Steytler (1995) for a discussion. 20. “SWAPO Lashes Out Over Claims,” The Namibian, December 2, 1992. 21. “Bring Judges in from Cuba,” Windhoek Advertiser, April 10, 1995. 22. “Garoeb’s Gaffe Tackled in Court,” The Namibian, October 1, 1995. 23. “Judges Face New Attack,” The Namibian, October 16, 1995. 24. “Judiciary under Fire in National Assembly,” The Namibian, April 10, 1996. 25. Interview with former judicial official, May 2006. 26. Interview with Namibian lawyer, April 2006; story corroborated in interviews with a former cabinet official, May 2006. 27. Bukurura (2006); see also Parliament of the Republic of Namibia, Hansard, June 7, 1995. 28. High Court Act 16 of 1990, as amended by Act 18 of 1995. 29. The Namibian, July 5, 1995, and July 25, 1995. 30. As Bukurura notes, these lawyers went on to form the Namibia Law Association within the Law Society, owing in part to the mistrust that black lawyers felt for their colleagues who had strongly challenged the law (Bukurura 2006: 323). 31. Hosea Angula was appointed acting judge in 1996; Sylvester Mainga was appointed acting judge in 1998. 32. Interview with ranking Namibian lawyer, April 2006. 33. The Namibian, April 24, 1998; other interviews indicate that the government put forward the names of three nonwhite individuals. 34. Interview with Namibian judicial official, May 2006; corroborated by interview with former cabinet minister, May 2006. 35. Two interviews corroborate this. 36. The Namibian, August 30, 2002. 37. SWAPO PARTY Election Manifesto 2004: SWAPO’s Plan of Action for Peace, Unity, and Sustainable Development. 38. “Showdown Looms between Namibian Government and the Judiciary,” South African Press Association, July 28, 2000. See also Bukurura (2002). 39. “Ekandjo’s Blast Queried in Court,” The Namibian, August 22, 2000. 40. The Namibian, September 12, 2000. 41. The Namibian, January 25, 2001. 42. The Namibian, April 6, 2001, and April 12, 2001.

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43. “SWAPO Youth Leader Lashes Out at ‘Wrong’ Judges on Our Courts,” The Namibian, February 26, 2004; see also February 25, 2004. 44. Interview with former judge, May 2006. 45. Interview with former judge, May 2006. 46. The president can extend judges’ terms by up to five years when they reach age sixty-five, or keep judges on in an “acting” capacity if requested to do so by ranking judges at the High and Supreme Courts. 47. Here I draw on, but also diverge from, the work of von Soest (2007), who undertakes a similar effort to measure neopatrimonialism across African political systems. 48. See Transparency International’s Corruption Perception Index, available at www.transparency.org/policy_research/surveys_indices/cpi. 49. “Zambia: Basking in a Cold Crisis,” Africa Confidential, July 15, 1994, 7. 50. Information derived from Melinda Ham, “An Outspoken Opposition,” Africa Report, November/December 1993; “Zambia: Defeats and Defections,” Africa Confidential, December 1993. Further insight obtained from an interview with a former Zambian cabinet minister in July 2006. See also VonDoepp (2005b). 51. Interview with former cabinet minister, May 2006. 52. Interview with former cabinet minister, May 2006. 53. Interview with former judicial official, May 2006.

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6 Insights from the Southern African Cases

In this final chapter, I seek to summarize, highlight, and expand on the key lessons and insights from the southern African case studies. I frame my discussion in terms of how the findings speak to the larger body of scholarship concerned with comparative judicial development. However, these lessons have relevance for the broader audience of those concerned with democratization processes, especially on the African continent. As I have indicated throughout, the analysis in this book, on the one hand, raises questions about existing theoretical frameworks for understanding the choices and actions of executives with respect to judicial institutions. On the other hand, it presents new theoretical insights on such issues. The discussion that follows addresses both of these points.

The Limits of Thin Strategic Models At the 2006 annual meeting of the African Studies Association, a prominent scholar and analyst of democratization processes in Africa, and elsewhere, emphasized the positive benefits derived from competitive electoral processes for democratic consolidation. While bringing attention to a number of issues, he focused specifically on the judiciary and the rule of law. Citing some of the research employing thin strategic approaches, he maintained that a competitive party system and robust electoral competition would bode well for judicial development. In this view, all good “democratic” things appear to go together. Competitive elections and power dispersion within the party system are believed to contribute to judicial autonomy. Yet the experiences of judiciaries in southern Africa suggest that things are not so simple. As we have seen, thin strategic

153

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154 Judicial Politics in New Democracies models do a relatively poor job of accounting for the actual patterns of interventions and interference undertaken by governments with respect to judicial institutions. Electoral competition and dispersed power have not led to respect for judicial autonomy, while concentrated power has not led to the undermining of judiciaries. This becomes even more apparent when we systematically compare the behavior of the different administrations discussed in this book in light of the conditions they encountered within party systems and the electoral marketplace. To illuminate this, I offer, first, a comparative summary of the patterns of behavior with respect to the courts exhibited by the five different administrations discussed thus far. These are the Nujoma administration in Namibia (1990–2004), the Chiluba (1991–2001) and Mwanawasa (first term, 2001–2006) administrations in Zambia, and the Muluzi (1994–2004) and Mutharika (2004–2008) administrations in Malawi. The goal here is to provide a sharper view of the differences among these administrations in terms of their approaches to judicial institutions. Drawing from the broader literature on government interference with the judiciary, I compare the behavior of these administrations using an instrument that considers six broad categories of intervention.1 These categories bring attention to twelve specific behaviors impinging on judicial autonomy. The categories of intervention and specific behaviors are as follows. 1. Institutional restructuring. As indicated, this refers to government efforts to change the basic rules and structures governing the exercise of judicial authority and the relationship between the judiciary and other branches. The instrument used below considers both whether administrations enacted such types of institutional changes and whether they attempted or threatened them. 2. Personnel manipulation. This category refers to efforts to pack the courts with supporters or remove those suspected of disloyalty. The instrument considers whether government violated standard rules and expectations concerning judicial appointments, undertook steps to remove judges, or actually purged them on political grounds. 3. Remuneration manipulation. The instrument considers whether governments either strategically timed remuneration increases or denied them as part of a larger program of pressuring the courts. 4. Personal attacks. This refers to efforts by powerholders or their allies to essentially punish judges or scare them. For each administration, I evaluate whether four such types of behaviors were apparent: public badgering or threatening the removal of members of the judiciary by members of the government, public badgering or threatening the removal of members of the judiciary by the president himself, personal threats of violence against members of

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the judiciary by members of the government or those associated with them, and investigations or threats of investigations against members of the judiciary who have run afoul of powerholders. 5. Patronage. To the extent that evidence or substantial allegations indicate that government attempted to provide extra material favors for judges or their families, it is taken as an indication of government interference with the courts. 6. Personal linkages. A final category of intervention concerns personal connections between the executive and the judiciary that are seen to compromise the independence of the institution. I include an item delineating whether there were perceptions from well-established sources that the executive had been in communication with members of the bench concerning court rulings. To be sure, relying on such perceptions represents a highly imperfect measure of such intrusions on judicial autonomy. However, as I have indicated, in some contexts, they represent an important part of the story of executive-judicial relations that should not be left out of an effort to discern the extent of interference the courts experience. Based on the material presented in the previous chapters, Table 6.1 shows the extent to which these behaviors were apparent under the respective administrations. For each item on the table, a 0, 1, or 2 indicates whether and to what extent the particular form of interference was evident. A score of 1 indicates that the form of interference took place or was apparent, while a 2 indicates that the form of interference was evident in more than one instance during the administration. These are then summed to create a raw score and divided by the number of years the government was in power, indicating the overall level of government interference with the judiciary during the specific administration. Even accepting that the different modes of interference should perhaps not be weighted equally, the comparative scores offer some measure of the varied extent to which governments attempted to interfere in the courts. The differences among the administrations are then shown by ordinal rankings provided in the final row of the table. The differences highlighted in the last row of the table are certainly consistent with the images of the respective administrations presented thus far. Interference has been relatively limited in Namibia, whereas in Malawi and Zambia it has been more apparent, albeit to varying degrees. Consider now the objective political conditions in which these administrations found themselves, keeping in mind the expectations put forward by thin strategic models. High levels of electoral uncertainty and high levels of power dispersion in the party system should generate relative respect for judicial autonomy. Conversely, where power is concentrated and elec-

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156 Judicial Politics in New Democracies toral uncertainty low, leaders presumably have both the incentives and means to interfere with and undermine judicial institutions. Table 6.2 delineates for each administration the relative levels of power dispersion and electoral uncertainty witnessed during their time in office, as discussed in Table 6.1 Interference with the Judiciary Under Different Administrations

NamibiaZambia- Zambia- Malawi- MalawiNujoma Mwanawasa Chiluba Muluzi Mutharika Institutional Restructuring Occurred 1a Attempted/threatened 0 Personnel manipulation Vague/inappropriate 0 appointments Judges inappropriately 0 removed Efforts to remove judges 0 for political reasons Remuneration Emoluments manipulated 0 Personal attacks Badgering/threats by 0 president Badgering/threats by other 2 government members Investigations/allegations 0 against judges Personal threats against 1b judges Patronage Evidence/substantial 0 allegations that government or allies have attempted to provide extra material benefits to judges Personal linkages Significant perceptions 0 of personal ties between the executive and judges Total score 4 Total score by years in office .26 Ordinal rank Low

0 0

0 1

0 0

0 0

0

0

0

0

0

0

0

0

0

0

1

0

0

1

0

0

2

0

2

2

0

2

2

1

0

1

1

1

0

0

1

0

0

1

1

0

0

1

1

0

2

7

9

4

.4 Moderate

.7 High

.9 High

.89 High

Notes: a. The “1” here reflects the 2002 change in the designated retirement ages of judges (70 to 65). b. At a 1991 rally, SWAPO activists called for the arrest (and by one account the death) of a judge.

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Insights from the Southern African Cases 157

the preceding chapters. These are tabulated against both the expected patterns of interference from thin models and the actual patterns of interference highlighted in Table 6.1. The patterns confirm that thin approaches do quite a poor job of accounting for the patterns observed in the southern African cases. Indeed, high levels of uncertainty and power dispersion appear to be associated with higher levels of interference, whereas lower levels appear to be associated with respect for judicial autonomy—the opposite of hypothesized expectations. One issue that deserves further commentary in this respect concerns the role of electoral uncertainty, as conceptualized by strategic approaches and as actually observed in the southern African cases. Such uncertainty is obviously stressed by those employing thin approaches. Yet it also appears, in consideration with other factors, from those using more sophisticated thick approaches. Hirschl’s (2004) “hegemonic preservation” model, for example, suggests that efforts to strengthen judicial autonomy and power are likely when there are congruent preferences between the political and judicial elite and when a government expects that it might lose power in majoritarian institutions. Thus, electoral uncertainty represents a necessary, though not sufficient, condition for judicial independence. Much the same, Keith Whittington (2003) suggests that respect for the judiciary is likely to increase in the event that courts and powerholders (in his case, legislatures) have generally congruent preferences and there exists some uncertainty about electoral outcomes. Again, electoral uncertainty is a central factor that, along with others, generates respect for judicial autonomy from powerholders. Table 6.2 Thin Models vs. Patterns of Interference

NamibiaZambia- Zambia- Malawi- MalawiNujoma Mwanawasa Chiluba Muluzi Mutharika Electoral uncertainty Power dispersion Government interference with judiciary: expected Government interference with judiciary: observed

Low Low High

High High Low

Moderate Moderate Moderate

High High Low

High High Low

Low

Moderate

High

High

High

Yet the southern African cases reveal a clear disjuncture between such theoretical expectations and observed tendencies. Electoral uncertainty appears to have the opposite effect, leading not to respect for judicial autonomy, but to efforts to interfere with it. The reason, I argue, lies in the utility calculations that affect leaders in these contexts. For scholars such as Whittington and Hirschl,

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158 Judicial Politics in New Democracies independent courts have utility to leaders because of their presumed value in the future. Respecting and enhancing the independence of the courts has value because those courts can protect the interests of current powerholders after they leave office. In this regard, independent courts represent an insurance policy, which becomes more or less viable depending on the extent to which the preferences of those on the bench are congruent with those currently in power.2 This assumes that powerholders have future political battles in mind when they evaluate their courses of action with respect to the courts. Yet this assumption may not necessarily hold. For leaders in many new African democracies, the here and now may be the only game in town. Because future political trajectories are uncertain, present political battles take on greater significance. And the courts are often relevant for, if not deeply embedded in, current political struggles—especially those over holding power. Lacking certainty that future political games will resemble current ones, and lacking certainty that current preferences on the court will endure, the value of the courts as an insurance mechanism drops considerably. Simply put, the future has far too many unknowns to generate incentives to invest in independent judiciaries that can check future governments. This helps us to understand why electoral uncertainty does not prompt respect for judicial autonomy and actually appears to work against it in the southern African cases.

Weak States and Neopatrimonial Politics The above points return us to a second major theme that I have presented: the importance of the larger systemic context in which leaders are embedded. In contexts characterized by state weakness and neopatrimonial politics, leaders face peculiar strategic considerations with respect to judiciaries. These concern their interests with respect to judicial institutions, the costs they face in intervening in them, and their capabilities vis-à-vis them. Regarding leader interests toward judicial institutions, the key issue I have attempted to illuminate concerns the relatively low utility of independent courts for leaders operating in neopatrimonial contexts. Leaders in these contexts confront unique circumstances that bring them to focus on maximizing and maintaining power above all other considerations. Of central importance in this respect are the relatively high risks that face state leaders while in office and the potentially high costs of losing power. Given these insecurities, leaders have relatively high needs for supportive or at least docile judicial institutions. Judiciaries thus become likely targets of intervention and interference by leaders seeking to minimize potential threats to their holds on power. Considerations about the future utility of autonomous judiciaries are effectively trumped by the more immediate concerns of leaders in neopatrimonial contexts.

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As we have seen, leaders in Malawi and Zambia have operated under circumstances where neopatrimonial tendencies have been far more apparent than in Namibia. Corruption, elite fluidity and instability, and political insecurity have been present to far greater degrees. This helps to explain the more powerful impulses to intervene in the courts by leaders in those countries. On the one hand, leaders have been less willing to tolerate the presence of institutions that might interfere with their ability to maintain and maximize their power. On the other hand, relative to Namibia, individuals seeking to protect and support judicial institutions have been less able to shape the pattern of government behavior toward the courts. Big man tendencies and survivalist impulses on the part of those in high office simply left less room for those who might have worked to protect the courts. One issue that deserves further consideration in future work concerns which aspects of neopatrimonial politics prompt the most determined efforts to undermine judiciaries. As I have focused on the incentives facing leaders, I have placed heavy emphasis on the insecurities facing leaders in neopatrimonial environments. Yet, as the literature makes clear, neopatrimonial politics involves far more than such insecurities. Most notably, it entails certain practices of rule. And it is entirely possible that such practices may operate independently of the insecurities facing leaders. Given this, in some polities, the appearance of neopatrimonial practices might not necessarily be associated with interference with judicial institutions. This is especially the case where such practices do not correlate with tendencies that increase the insecurities of leaders. Future research can help to investigate whether it is neopatrimonialism writ large that prompts incentives to undermine the courts, or certain tendencies that are common to, but nonetheless vary between, such polities that do so. This aside, larger systemic characteristics also help to account for the peculiar styles of intervention observed in the southern African cases. Leaders operating in contexts of state weakness and neopatrimonialism face unique constraints on their range of choices with respect to the courts, but also unique opportunities for influencing them. With respect to constraints, owing to systemic characteristics, certain measures to corral the courts are relatively off the table. State weakness forces leaders to be somewhat responsive to international concerns about good governance and judicial independence. Most notably, dramatic institutional restructuring and court-purging measures have potentially high costs in terms of generating rebuke from the representatives and allies of powerful international actors within these societies. As we have seen, donor and civil society concerns played an important, albeit indeterminate, role in reversing powerholders’ efforts to interfere with the courts in Malawi and Zambia. Moreover, because political allegiances and loyalties tend to be relatively fluid in these systems, leaders have little to gain from packing the courts with erstwhile supporters. Today’s ally may turn out to be tomorrow’s

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160 Judicial Politics in New Democracies opponent, thus rendering manipulation of personnel on the bench a very blunt and likely ineffective mechanism of control. At the same time, while certain measures are more off the table, the neopatrimonial environment opens up avenues for other means of influence. For example, informal accounts and some public record evidence suggest that governments in Malawi and Zambia employed patronage to try to purchase the loyalty of judicial institutions. Well-informed observers also maintain that personal connections between executives and key judges represented a form of government influence over the courts. Both of these techniques are consistent with the standard practices of rulers in neopatrimonial settings who tend to use informal measures to buttress their power. Beyond this, leaders also benefited from the uncertain status of institutions protecting judiciaries. Public comments, allegations, and threats carry far greater meaning in environments where institutions protecting the courts are weak and untested and where extralegal political tactics—including violence—have substantial legacies. Recall the comments by one Zambian judge who claimed, “They can destroy you by other means,” referring to the weakness of protections for judges. Recall also that certain Malawian judges engaged in personal efforts to protect themselves in the climate of thuggery that emerged during Bakili Muluzi’s bid to secure a third term. These comments and behaviors remind us that presidents and their allies have unique opportunities to intimidate and influence members of the bench in neopatrimonial settings. Part of this capacity to intimidate also derives from the ambiguous and sometimes porous boundaries separating executive interests from agencies charged with serving the state. Prosecutorial and anticorruption agencies can be harnessed to serve the president, making his enemies vulnerable to intrusive investigations, public shame, expensive court battles, and even jail time. As indicated, judges in Malawi and Zambia who have run afoul of powerholders have faced allegations of criminal wrongdoing, threats of legal actions, and actual investigations. The experience of judiciaries in Malawi and Zambia thus suggest certain peculiarities about judicial politics in neopatrimonial settings. Executive interference with the courts was common in these societies. Yet such interference tended to take a unique form. Actions often targeted judges at individual levels. Sometimes these involved public measures such as badgering or threatening the use of state agencies against them. At other times they involved subtle and informal behaviors entailing the provision of patronage or cultivation of personal networks. Yet, equally important, while these interventions purchased some level of influence over the courts, the use of such techniques also reflected the above-mentioned constraints on leaders in terms of the tools of manipulation available to them. Courts in these contexts thus avoided dramatic personnel purges or institutional enfeeblement. In turn, they retained the ca-

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Insights from the Southern African Cases 161

pacity to exercise their powers in ways that challenged executives and reinforced the rule of law. As we have seen, they used these powers in ways that affected the course of political development in these societies.

The Judiciary as an Independent Variable The case material from the previous chapters also illuminates that the judiciary itself plays an important role in shaping the nature and extent of executive interference with the bench. On the one hand, its status within the system and, in particular, the extent to which it has influence over key political questions, informs government interests regarding the courts. Where political issues are judicialized, the importance of the courts to powerholders increases, thus augmenting the likelihood of interference with the bench. On the other hand, judges, through their behavior, can affect the extent of autonomy they enjoy. Through their rulings, they provide information or signals to powerholders about their willingness to interfere with government interests. This also affects government impulses to intervene in the courts. Moreover, through their broader interactions within the political system, judges can shape government interests with respect to the courts as well as the costs leaders face in seeking to interfere with their autonomy. In the discussion below, I offer further comparative reflection on these key themes. The Judicial Threat: Reconceptualizing Judicialization and Signaling Dynamics In the theoretical chapter that precedes the case studies, I discuss judicialization and signaling in discrete sections. This is to emphasize they are distinct phenomena. The former refers to the status of the courts in the political system; the latter refers to their behavior in rendering decisions in political cases. I also acknowledge, however, that these two phenomena interact considerably in shaping the interests of government toward the courts. High levels of judicialization combined with antigovernment signaling by the courts represent the condition most likely to prompt government interference with the courts. By contrast, antigovernment signaling matters much less to government when key political issues have not been judicialized. The case studies certainly bring these issues to light. Yet in order to obtain richer comparative perspective on the patterns of intervention in the three countries, the two phenomena can be profitably combined to more effectively capture their interactive effects on government behavior. I suggest here that judicialization and signaling, together, affect the extent to which powerholders perceive the judiciary to be a threat. Variances in judicial threat levels help to account for the differences in the experiences of judiciaries across the different

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162 Judicial Politics in New Democracies administrations reviewed in this study. Comparative analysis illuminates this more completely. To begin, consider the varying levels of judicial threat, informed by judicialization and antigovernment signaling, experienced by the different administrations. Table 6.3 presents these in summary form. For each administration, I score on a 0–2 scale the extent to which both judicialization and antigovernment signaling took place during their time in power. These scores are then summed and translated into ordinal rankings capturing the varied extent of the threat judiciaries presented to governments.3 When offering these summary scores and rankings, I do not consider the years in office for each administration. The reason for this is that perceptions of threat likely do not change dramatically over time for individuals who hold office. High levels of judicialization and antigovernment signaling, for example, in the fourth year of the Chiluba administration likely informed the president’s perception of the courts throughout his remaining time in office. Thus it is appropriate to consider threat levels as characterizing the entire administration, regardless of their length. While the basis for these rankings should be clear from the material presented in the previous chapters, my justification for allocating the respective scores is as follows. For Namibia, major issues concerning the ability of the president to hold power, the extent of his authority, and the threats to his administration did not end up in the courts. While the courts decided issues of major national interest, these did not directly touch on the fate and power of the executive. At the same time, judges showed little inclination to defer to government. Thus we score judicialization at .5, while signaling is scored as a 2. The combined score of 2.5 is the lowest for the five administrations. The judicial threat is labeled as moderate. In Zambia, by the end of President Chiluba’s first term, major political issues, especially those concerning elections and efforts to amend the constitution, were being decided by the courts. Such major cases continued to be heard by the courts throughout his administration. Moreover, the courts signaled Table 6.3 Judicial Threat Levels Under Different Administrations

NamibiaZambia- Zambia- Malawi- MalawiNujoma Mwanawasa Chiluba Muluzi Mutharika Judicialization Antigovernment signaling Combined score Judicial threat levels

0.5 2.0 2.5 Moderate

2 1 3 Moderate

2.0 1.5 3.5 High

2.0 1.5 3.5 High

2 2 4 High

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their willingness to interfere with the executive in the Mulundika ruling, albeit less so thereafter. Thus judicialization is scored at a 2, while signaling obtains a 1.5. Given that the final score of 3.5 is tied as the second highest for the five administrations, the judicial threat level is ranked as high for the Chiluba administration. Under the first term of the Mwanawasa administration, major issues remained before the courts. Although the High Court showed a willingness to decide cases contrary to government interests, the Supreme Court remained relatively deferential to the executive. Thus judicialization is scored at a 2, while signaling obtains a 1. With a final score of 3, the judicial threat is ranked as moderate. Judicialization was also consistently high in Malawi, from shortly after the founding elections in 1994 to the period of the Mutharika administration. Under Muluzi, antigovernment signaling was quite high at the High Court, while the Supreme Court remained mostly deferential to the government. We thus score antigovernment signaling at 1.5. During Mutharika’s first four years in office, all levels of the judiciary indicated a willingness to render decisions contrary to his interests. Antigovernment signaling thus obtains a 2. Given the high combined scores of both administrations, the judicial threat level is ranked as high for each. Consider now how these varying threat levels relate to the extent of interference judiciaries experienced under these administrations. Table 6.4 depicts this using the material from Table 6.1. I add summary statements indicating the extent of neopatrimonial tendencies operating in these countries (as developed in Chapter 5) to offer more perspective on the interactions between the key factors considered in this study. (Such tendencies are considered constants across administrations in each country.) As is evident in the table, judicial threat levels, along with neopatrimonialism, help to effectively account for the patterns of interference observed in the southern African cases. Most centrally, high judicial threat levels are associated with high levels of interference with the courts, while lower threat levels are associated with lower levels of interference. The comparative insights thus support Table 6.4 Judicial Threat Levels, Neopatrimonialism, and Government Interference

NamibiaZambia- Zambia- Malawi- MalawiNujoma Mwanawasa Chiluba Muluzi Mutharika Judicial threat levels Neopatrimonialism Interference with judiciary

Moderate Low Low

Moderate High Moderate

High High High

High High High

High High High

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164 Judicial Politics in New Democracies the attention to judicialization and signaling in the case narratives in the previous chapters. Government-judicial relations reflect much more the dynamic interactions between the courts and their political environments than they do the objective political circumstances in the electoral market place and party system. Where the courts obtain the power to substantially affect political outcomes, and demonstrate a willingness to use that power in a manner that contradicts the interests of powerholders, government interests in controlling and manipulating those institutions increase, as does the likelihood of interference. Judges as Independent Actors Finally, it deserves reiteration that judges are not passive players in the process of judicial development. Their behavior outside of their formal adjudication role can have important consequences for government-judicial relations and the extent of autonomy that the courts come to enjoy. Although the previous chapters do not highlight and compare this issue systematically across the cases, it nonetheless emerges as important in several of the narratives. The clearest example emerges from the Namibian case. There, the active role of Namibia’s senior judges in cultivating relations with the executive, and their cautious but assertive behavior in the wake of government and ruling party assaults on judicial autonomy, served the cause of protecting the judiciary. Such actions likely softened executive impulses to intervene in the courts and signaled that there could be high costs in the event of interference. On a lesser scale, the Malawian case also provides examples of judges taking some steps, usually reactive, in efforts to protect their institution. The national judges and magistrates association threatened to go on strike in the wake of threats to impeach three High Court judges. And the chief justice, despite perceptions of a close relationship with the executive, did not sit quietly in the context of such attacks, but implored the president to follow the rule of law and respect the integrity of the judiciary. Beyond this, several senior judges, it was reported to me, offered private support for those targeted. Such steps helped to foster solidarity, which some felt could aid the courts in the event of future assaults on judicial autonomy. Finally, as I have reported, judges have not embraced deferential postures, even in the face of dominant executives and apparent threats to their independence. In all countries, judges have rendered important antigovernment decisions over the course of the democratic era. Although such actions can increase the potential of government interference with the bench, to the extent that judges and the courts survive such interference, such antigovernment rulings establish norms, or at least examples, of independent judicial action. This, in turn, can contribute to future assertive behavior by judges, even when they are faced with hostility from other powerholders. Courage by judges who re-

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fuse to defer to the government in their decisions can increase the confidence of other judges deciding cases with political implications. All this said, there are also examples in this book of instances where judges have wittingly or not actually undermined their own autonomy. Some came to appear connected to the executive in ways that undermined their credibility with key constituencies and their colleagues. This also rendered them more susceptible to manipulation by the government. Others allowed themselves, directly or indirectly, to become connected to patronage networks. In the Zambian case, once this was revealed, the integrity of the judiciary as a whole came to be questioned, thus decreasing support for the institution. Other judges, it was alleged, had “skeletons in their closet,” which left them vulnerable to governments that could threaten actions in the event they failed to support powerholders in key rulings. Finally, the passive responses of some judges in the face of assaults on judicial autonomy likely served to buttress perceptions of executive dominance over the courts. The most glaring instance of inaction occurred in the context of Levy Mwanawasa’s public badgering of a High Court judge who had rendered a significant antigovernment decision. Rather than confront the president and attempt to defend the principle of separation of powers, judges remained publicly silent. This reinforces the important points raised by scholars such as Jennifer Widner (2001) and Justin Crowe (2007) about the proactive role that judges can undertake in building their own autonomy. Developing supportive constituencies and cultivating public support for the institution, they suggest, make the judiciary less susceptible to interference from powerholders. So, too, can efforts to cultivate mutually respectful relationships with other branches. Moreover, by increasing the capacity and efficiency of court systems, judges can increase the efficacy of their institution. This can promote affective support for the institution in society and improve the esprit de corps and confidence of members of the judicial branch. These points should not be lost on those in positions of judicial power in emerging democracies. There are steps that can be taken toward the end of promoting judicial autonomy, and there are behaviors that should be avoided for the sake of the same end. The ultimate fate of the judiciary is, of course, tied to a variety of other dynamics, as I have argued throughout. But judges are important players in the game of judicial development who should be aware of how their choices and actions affect the health of their institution.

Conclusion The above points suggest that the lessons of this study are important for both scholars and for individuals seeking to advance judicial autonomy in new

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166 Judicial Politics in New Democracies democracies. At their most basic, the findings suggest that students of judicial politics need to be cautious in accepting the premises of thin strategic models. Such models certainly offer insights that deserve close consideration, especially given their demonstrated utility in accounting for governmentjudicial relations in certain cases. However, the evidence from this study, as well as from others (see especially Hirschl 2004 and Whittington 2003) suggests that these frameworks are incomplete and may not effectively account for judicial politics in varied contexts. Building from existing insights on judicial politics in the literature, this study has highlighted three factors to help account for the patterns of government-judicial relations in the southern African cases. Systemic- and regimelevel factors, specifically levels of state weakness and neopatrimonialism, were found to affect the character of judicial politics in the countries investigated. In some respects, such features decrease the possibilities for judicial autonomy. This is especially true as the insecurities associated with governing in neopatrimonial environments generate powerful incentives to intervene in and corral independent judicial institutions. Yet such features also decrease the menu of judicial manipulation available to leaders. This means that their ability to effectively undermine the courts is limited. Thus judiciaries can enjoy some level of autonomy in these systems and play a meaningful and positive role in shaping the course of political development. Beyond this, the study clearly indicates that patterns of government-judicial relations very much reflect the dynamic interactions between the courts and their political environment. The importance of the courts for powerholders varies to the extent that key political issues become judicialized. Moreover, the patterns of court decisions, or signaling, offer information to leaders about the prospects of the judiciary interfering with their aims. This then shapes their choices and actions with respect to the bench. Finally, the material indicates that judges are not without recourse to proactive steps to build the independence of their institutions. Thus, while they cannot control systemic-level features and may not have much control over the status of the courts with respect to central political issues, they can nonetheless help to author the story of judicial development in their countries in other ways. It is here that the lessons of this study extend most definitively out of academic discussions to touch on practical concerns for those working for judicial autonomy. To be sure, given that the study here focuses only on three countries, the practical and academic lessons offered must be considered suggestive, rather than conclusive. Further research is necessary to more systematically probe the importance of these factors and illuminate the role of others. Given the importance of judicial institutions for new democracies, and for citizens in these societies, ongoing investigation of such issues is especially warranted.

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Notes 1. A somewhat different and more elaborate instrument is used in VonDoepp and Ellett (2008) to capture varying degrees of interference with the courts. Similar conclusions are reached, however, about the differences between the different administrations reviewed here. 2. See also Ramseyer (1994) and Ginsburg (2003) on this point. 3. A slightly different framework is employed by VonDoepp and Ellett (2008) to capture judicial threat levels, albeit one that comes to similar conclusions about the differences across these administrations.

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———. 2002. “Africa’s Range of Regimes.” Journal of Democracy 13 (2): 66–80. van Donge, Jan Kees. 1995. “Kamuzu’s Legacy: The Democratization of Malawi.” African Affairs 94 (375): 227–258. ———. 1998. “The Mwanza Trial as a Search for a Usable Past.” In Democratization in Malawi: A Stocktaking, ed. Kings Phiri and Kenneth Ross, 21–51. Blantyre, Malawi: Christian Literature Association in Malawi. ———. 2008. “The Plundering of Zambian Resources by Frederick Chiluba and His Friends: A Case Study of Interaction Between National Politics and the International Drive Towards Good Governance.” African Affairs 108 (430): 69–90. Venter, Denis. 1995. “Malawi: The Transition to Multi-party Politics.” In Democracy and Political Change in Sub-Saharan Africa, ed. John Wiseman, 152–192. New York: Routledge. Villalón, Leonardo, and Peter VonDoepp. 2005. The Fate of Africa’s Democratic Experiments: Elites and Institutions. Bloomington: Indiana University Press. VonDoepp, Peter. 2005a. “Institutions, Resources and Elite Strategies: Making Sense of Malawi’s Democratic Trajectory.” In The Fate of Africa’s Democratic Experiments: Elites and Institutions, ed. Leonardo Villalón and Peter VonDoepp, 175–198. Bloomington: Indiana University Press. ———. 2005b. “Party Cohesion and Fractionalization in New African Democracies: Lessons from Struggles over Third Term Amendments.” Studies in Comparative International Development 40 (3): 65–87. ———. 2005c. “The Problem of Judicial Control in Africa’s Neopatrimonial Democracies: Malawi and Zambia.” Political Science Quarterly 120 (2): 275–301. ———. 2006. “Politics and Judicial Assertiveness in Emerging Democracies: High Court Behavior in Malawi and Zambia.” Political Research Quarterly 59 (3): 389–399. ———. 2008. “Context-Sensitive Inquiry in Comparative Judicial Research: Lessons from the Namibian Judiciary.” Comparative Political Studies 41 (11): 1515–1540. VonDoepp, Peter, and Leonardo Villalón. 2005. “Elites, Institutions, and the Varied Trajectories of Africa’s Third Wave Democracies.” In The Fate of Africa’s Democratic Experiments: Elites and Institutions, ed. Leonardo Villalón and Peter VonDoepp, 1–26. Bloomington: Indiana University Press. VonDoepp, Peter, and Rachel Ellett. 2008. “Reworking Strategic Models of Executive-Judicial Relations: Insights from New African Democracies.” Presented at the Annual Meeting of the American Political Science Association, Boston, MA, August 27–31.

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178 References von Soest, Christian. 2007. “Operationalizing Neopatrimonialism.” Paper presented at the 2007 Meeting of the African Studies Association, New York, October 18–21. Wanke, Marshall Carter. 1974. “Political Justice, the African Experience: Studies in Nigeria, Uganda, and Zambia.” Ph.D. diss., University of Wisconsin. Whittington, Keith. 2003. “Legislative Sanctions and the Strategic Environment of Judicial Review.” I-CON International Journal of Constitutional Law 1 (3): 446–474. ———. 2007. Political Foundations of Judicial Supremacy. Princeton, NJ: Princeton University Press. Widner, Jennifer. 1999. “Building Judicial Independence in Common Law Africa.” In The Self-Restraining State: Power and Accountability in New Democracies, ed. Andreas Schedler, Larry Diamond, and Mark Plattner, 177–193. Boulder, CO: Lynne Rienner. ———. 2001. Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa. New York: W. W. Norton. Williams, David T. 1978. Malawi: The Politics of Despair. Ithaca, NY: Cornell University Press. Windhoek Advertiser. Dates as listed in notes. Windhoek, Namibia. Young, Crawford. 1985. “Africa’s Colonial Legacy.” In Strategies for African Development, ed. Robert Berg and Jennifer Seymour Whitaker, 25–50. Berkeley: University of California Press. Zakarias, Fareed. 1997. “The Rise of Illiberal Democracy.” Foreign Affairs 76 (6): 22–43. Zimba, Lawrence. 1984. “The Origins and Spread of One-Party States in Commonwealth Africa, Their Impact on Personal Liberties: A Case Study of the Zambian Model.” In Law in Zambia, ed. Muna Ndulo, 113–141. Nairobi: East Africa Publishing House.

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Index

African democracies, new: governments’ choice of options for, 19–20; hybrid and hollow regimes in, 4, 5; inadequacies and shortcomings of, 4; informal politics and extrainstitutional dynamic in, 19; presidential dominance and patrimonial/big-man politics in, 4–5. See also Southern African cases African political system, weak states and neopatrimonial politics in, 29 Banda, Richard, 97 Banda dictatorship (Malawi), 86; brutal authoritarian rule of, 7; common law court system and judges in, 79, 80–81; effective and repressive regime of, 79; emasculation of judiciary in, 79–80; and legal changes to local courts, 80; legal system at independence, 79; overview of courts under, 78–81; subdued and marginalized courts under, 79; traditional courts as primary venue for criminal matters in, 80 Bweupe, Bonaventure, 54; candidacy and elevation to Supreme Court of, 50–51; extended tenure of, 60 Chihana, Chakufwa, 81; Alliance for Democracy (AFORD) of, 85 Chiluba administration, 31; challenges to second candidacy of, 61–62; and

changes in rules governing judicial relations, 56–57; court signaling decisions of, 52–54, 55; courts’ respect for autonomy in, 49–50; and critical editorials on the judiciary, 62; direct approaches to control the courts, 57; effort to aggrandize and maintain power in, 48; efforts to manipulate the judge and the courts, 42–43, 58, 61; experience of judiciary under, 12; government interference with the courts in, 42, 43; High Court behavior during second term of, 65–66; and interest in reining in the judiciary, 52; and issue of third term, 63, 64–65; judges’ challenges to executive interests in, 43; maximizing and holding power as overriding concern of, 58–59; networks of corruption and patronage in, 57–58; personalized techniques to control the bench during, 60; politics and judicial development during, 48–66; problem of judicial control and demise of, 63–66; second term efforts to keep courts in line, 61–62; second term suspicions of improprieties in, 62–63; and strategies to control the judiciary, 59–60; Supreme Court political case decisions of second term, 63–64; theoretical perspective on actions of, 58–60 Constitutional governance, and political transitions (early 1990s), 3–4

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180 Index Democratic rule: benefits from competitive electoral processes for consolidation of, 153–154; and new significance of judicial institutions, 3 Government-judicial relations: electoral competition and uncertainty over future outcomes in, 21; parsimonious thin models of, 20–24; shaped by systemic-level characteristics of, 28–36; strategic considerations and models of powerholders in, 20; theoretical perspective on, 20–28 Hanjahanja, William, 93 Judges: behaviors outside their formal role, 164; conceptualized roles of, 27; controlled by executives in weak states, 35–36; independent role played by, 27–28; judicial development shaped by, 26–28 Judicature Administration Act of Zambia, 51–52 Judicial authority: leader costs in interventions with, 23; and techniques to control judiciaries, 23 Judicial autonomy: and competition level in party system, 21; conceptualization of, 17–20; connection between judicial decisionmaking and, 37–38; judicial behavior as measure of, 37–39; and judiciaries’ level of independence, 17–18 Judicial independence: foreign donors and civil society support groups for, 33–34; judges’ steps to “lock-in,” 27–28; and judicial behavior, 37–39 Judicial institutions: autonomous, exercise of authority in, 1–2; and democratic rule, 3; government interference in, 3; and horizontal accountability, 5; inherent weaknesses and assaults on autonomy and authority of, 5–6; and international norms and expectation, 33; and parsimonious thin models, 20–24; and political transition (early 1990s), 3–4; politicians’ incentive to cultivate and

create, 20–21; powerholder approaches to, 2; rule of law enforcement through, 4; theoretical perspective on, 17–39; unique problems in seeking control of, 35 Judicial politics: government choices with respect to, 2–3; strategic approach to, 2 Judicial Service Commission (Malawi), 96–97 Judicial Service Commission (Namibia), 120; calls for transformation of, 129–130; composition of, 138–139; limited insight into judiciary autonomy, 139–140; rules governing appointment to the bench, 126–127; SWAPO’s resolution to transform, 129–130; vibrancy of, 140 Judicialization: and court signaling dynamics, 36–37, 49, 161; and court’s status in the political system, 161; and government interest in managing judicial power, 26; of political issues, 25–26; varying levels and importance of, 25–26 Judiciary(ies): as independent variable, 161–166; political foundations of power and status of, 1; role in shaping executive interference, 161; systemic/regime-level characteristics informing interests of, 22–23; variances in threat levels under different administrations, 161–164 Kaunda, Kenneth: citizenship ruling for, 64; inquiry into parentage and citizenship of, 62 Kaunda administration, 31; calls for political reforms and multiparty politics in, 47; centralized and authoritarian rule under, 7, 45; experience of judiciary under, 12; promise to “Zambianize” the judiciary, 44–45 Law Society of Namibia, change in composition of, 127 Legal Practitioners Act (Namibia), provisions and impacts of, 127–128

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Malawi: big men politics in, 7–8, 78; courts’ growing independence and support for political change in, 81; and courts’ independent line toward executives, 78; decision for multiparty politics in, 81–82; dependence on foreign aid in, 33; efforts to undermine judicial independence and power in, 12–13, 77–78; judicialization and antigovernment signaling in, 163; judiciary in new democracy of, 7; and limits of conventional thin approaches, 77; neopatrimonial and weak state environment in, 78; neopatrimonial tendencies and intervention in the courts, 159; party system and election uncertainty in, 7; problem of judicial control in, 78; patronage for purchasing judiciary’s loyalty in, 160; provisional constitution in, 82–83; as representative of classic weak states, 7, 78; reshaping of political order in, 82; reworking of judiciary and new constitution of, 83–84; sources of judicial interference in, 26; tendencies toward judicial authority in, 20. See also Banda dictatorship Movement for Multiparty Democracy (MMD), 41; ascendancy to power, 48; Chiluba’s control of key positions in, 67; courts’ challenge to, 55; debate over new constitution, 47; and High Court candidates, 50; and judicial independence, 49 Muluzi, Bakili, arrest of, 82 Muluzi administration: alleged connections between powerholders and the judiciary in, 88; constraints on tools for controlling the courts in, 84; and court involvement in politically important cases, 86; and court struggles with key political actors, 85–86; deteriorating respect for human rights in, 98–99; efforts to influence and rein in the courts, 89, 95–97; executive manipulation and judicialized politics in, 77; first term

patterns of political decisions, 90–91; High Court judges as targets of intimidation and thuggery in, 98–100; High Court’s antigovernment rulings in, 95–96, 99–100; interference with judiciary in, 84–85, 87; international and donor pressures on, 96–97; and judges’ ethnoregional identities, 91–93; judges’ nonsupport in, 89; judicial control of High vs. Supreme Court decisions in, 90–92; judicial politics of first democratic decade in, 84–90; neopatrimonial politics and impulse to retain power in, 94–95; 1999 elections and contentious judicial politics in, 92–94; quest for third term, 94–100; ruling elite’s approach to the courts, 86–87; and stories of executive interference, 87–88; violence and widespread corruption in, 98 Mutharika administration: ambiguous court relationship with, 104–105; and constraints on controlling the bench, 105–107; court issues addressed in, 104; courts viewed as enemy in, 107–109; election of, 101–102; Electoral Commission’s role in 2004 polls, 102–103; and High and Supreme Courts appointments, 109; judicial appointments of, 105–106; judiciary’s experience with, 77, 101, 104–109; and means of influencing the courts, 105; parliamentary effort to impeach, 104; patrimonial context of interventions of, 101; political dynamic of first term, 104; power dispersion and electoral uncertainty in, 101; president’s authority in, 103; president’s weak political position and vulnerability in, 101; relatively balanced decisionmaking in, 104–105; rift with Muluzi, 103–104; setbacks on key political rulings in, 107–108 Mwanawasa, Levy, opposition to candidacy of, 66–67 Mwanawasa administration: and big-man tradition in neopatrimonial polities, 71; challenges in asserting authority

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182 Index of, 67; climate of fear and economic uncertainty in, 72–73; constraints of limited capabilities and courtcurbing costs in, 71; disregard for rule of law and other branches of government, 69; experience of judiciary under, 12; first term pattern of court decision-making in, 71–73; and High Court decisions (2002–2006), 72; High Court’s attitude toward, 70–71; judicial approach and politics of, 67–69; leadership of restraint and interference in, 67–69; perspective on actions of, 69–71; positive trends in, 41; Supreme Court deference to, 70; suspected plot to overthrow, 143; weak states politics of, 71 Namibia: amicable relations of courts and executive in, 138; assaults on the courts after treason trial in, 123–125; capacity and legitimacy in, 8; checks on government abuses in, 7; colonial and apartheid legacy in, 115; constitution draft and adoption in, 118; constitution’s key principles in, 119–120; corruption levels in, 142; government-judicial relations in, 121–134; historical and institutional contexts of, 117–121; limited judicialization of politics in, 145–147; limited neopatrimonial tendencies and state weakness in, 31, 116; moderate judicial threat in, 162; 1970s’ political and social unrest in, 118; pattern of restrained executive behavior in, 141; role of ideological tendencies in, 144; secure leadership in, 142–143; single-party dominance in, 7; South Africa’s policies of apartheid and ethnic homelands in, 117; and thin theoretical perspectives on, 14, 137; transition to independence, 118; weak neopatrimonial tendencies in, 31, 116, 141–145. See also South West Africa People’s Organization Namibian judiciary: agenda of transformation and representation in,

125–131; appointment of individuals from Zimbabwe and Zambia to, 126; autonomy of first fifteen years of independence in, 121–122; challenge to government autonomy in, 123–125; and executive-judicial relations, 147–148; factors in personnel choices for the bench, 138; government’s efforts to change basic rules and institutional structures of, 126–127; government badgering in, 148–149; government’s restraint and respect for autonomy in, 115–116, 125–126; and government’s tinkering with institutional structures governing, 129; gradualism and restraint in diversifying, 128; High Court judges’ decisions against the government, 135; hostility from government and ruling party officials toward, 125; institutional provisions for authority and independence in, 119–121; institutional structures and personnel constraints in, 138–141; and issues of Namibia’s violent and repressive past, 123; judges as active players in, 147–149; and judges’ promotion of their own autonomy, 117, 164–165; lack of broad roots and society’s support for, 123; limited electoral competition and prospects for judicialization in, 116, 146–147; maintaining standards of, 128–129; and major political questions, 146; mandatory retirement ages for Supreme and High Court justices, 130–131; nature of appointments (after mid-1990s), 128–129; 1998 appointment of new chief justice for, 129; patterns of High and Supreme Court decisions (1990–2005), 134–135; patronage employed for purchasing loyalty of, 160; and personnel choices and constraints, 140–141; and politics of judicial personnel, 125–131; powers and protections for, 118–119; primarily white personnel and racial politics

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in, 122–123, 125; public attacks on, 123–125; public conflict and court bashing in, 131–134; racial representation and diversification of efforts in, 126; recent appointments to High and Supreme Courts, 130–131; relationships between powerholders and the courts in, 121; relative weakness of neopatrimonial tendencies in, 143; respect and restraint for judiciary autonomy and authority in, 20, 137–138; and senior judges’ relations with the executive, 164; senior judges’ response to public attacks in, 148; Supreme Court decisions by level of government interest in case, 135; SWAPO hardliners’ condemnation of, 132–133; themes of public attacks on, 134 Neopatrimonial politics and rule, 158–161; associated with ruler’s insecurity, 30–31; and compliant judiciaries for maximizing and holding power, 32–33; concept and distinct practices of, 29; corruption and, 30; and governments’ capabilities, 34–36; informal measures for protection of power, 160; leaders’ prioritization of political survival under, 31–32; and leaders’ use of rents to reward friends and punish enemies, 60; manipulation and control in, 35–36; and other means of influence, 160; political alliances and loyalties in, 31; and practices of rule, 159; and presidential displacement, 30–32; ruler’s use of public resources in, 30; and tendency toward presidentialism, 29; use of clientelism in, 29–30; utility of independent courts for leaders in, 158; use of violence and coercion in, 30 Ngulube, Matthew: alleged effort to intimidate, 57; as compromise pick for chief justice, 51, 54–55; departure of, 69; funds paid to, 58 Nujoma, Sam, 117, 148; election to SWAPO leadership, 118; and public attacks on the court, 123–125

Presidential displacement, extralegal efforts and costs of, 30, 31, 32 Press Trust Act, 87, 88 Rule of law, and political transitions (early 1990s), 3–4 Silungwe, Anel, 50, 54 South West Africa People’s Organization (SWAPO) party, 7, 8; calls to transform, 133; commitment to work through international bodies, 117–118; control of executive and legislative branches by, 115; as sole and legitimate Namibian representative, 118; struggle for independence of, 122–123 South West Africa Society of Advocates, source and roles of, 120–121 Southern African cases: and administrations’ behavior on categories of intervention, 154–155; basic institutional structures of courts in, 6–7; comparative summary of behavior patterns in, 154; electoral uncertainty in, 157–158; experiences of the courts in, 2; explicit comparative analysis in, 8; government approaches to judiciaries in, 19–20; independent tendencies of judiciary in, 26; interference with judicial autonomy in, 157–158; and judicial development, 12; and judiciary interference under different administrations, 155–156; judicialization of political questions in, 11–12; and larger systemic characteristics and styles of interventions in, 159; material and data for, 8–9; parsimonious thin models used in, 11–12; and reformulations of strategic approaches, 2; and systemic-level shaping of government-judiciary relations, 12; thick strategic approaches to, 24–25, 157; within-case process in, 8 Strydom, Johann, 129, 130 SWAPO. See South West Africa People’s Organization

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184 Index Thin strategic models: of governmentjudicial relations, 20–24; and judicial politics, 2; limitations and correction of, 11–12, 23–24, 153–158 United Democratic Front (UDF), 85, 94, 98; efforts to impeach judges, 96–97; 1999 electoral contests as challenge to, 92–93; fracture of, 103; and youth wing’s disruptions, 102 United National Independence Party (UNIP), 44, 50; and perceptions of Supreme Court, 49; as primary powerholder in Zambia, 45 Weak states: costs of manipulating judiciaries in, 33; definition of, 29; executives’ efforts to manipulate and control, 35–36; neopatrimonialism’s close ties to, 29 Zambia: campaign for national elections in, 47–48; as classic weak state, 7; creation of one-party state in, 44; democratic era dominance of single undisciplined party in, 7; dependence on foreign aid in, 33; High Court decisions (1992–1995), 52–53; importance of neopatrimonial weak state environment in, 42–43; limited constitutional democracy in, 43; neopatrimonial tendencies in, 8; tendencies toward judicial authority in, 20. See also specific administrations

Zambia’s judiciary: aggressive campaign to rein in the courts, 55–56; basic structure of, 43–44; and courts’ checks on executive power, 46; compromise on constitutional amendments in, 47; and courts’ supportive role in political change, 48; and delimits of executive power, 44; democratic transition and programs in, 41; and eroding faith in Supreme Court’s independence, 54; executive control over finances for, 49; executive restraint in early years of, 49; framework of one-party state in, 45–46; government support of independence in, 44; government’s failure to “Africanize,” 44–45; High Court as third tier of, 45; independence during second republic of, 46; leader choices and actions in regards to, 42; multiparty politics and calls for political reforms in, 47; neopatrimonial tendencies and intervention into, 159; political legacy of, 49; president’s increased powers over, 45–46; status and role of, 42; subordinate position of, 56; substantial authority in, 7; Supreme Court appellate and original jurisdiction in, 45; and Supreme Court decision in Mulundika case, 55; of third republic, 49–55; visible political role of, 44

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About the Book

That judicial institutions are important for emerging democracies leaves little (if any) room for debate. But to what extent do judiciaries in these new democracies maintain their autonomy? And what accounts for varying levels of autonomy across states? Drawing on the cases of Malawi, Zambia, and Namibia—and offering a novel analytical framework—Peter VonDoepp illuminates why power holders behave as they do toward the courts. VonDoepp considers whether and why political leaders have respected or undermined judicial autonomy in each of the three cases. He also addresses how the courts themselves have shaped executive-judicial relations. His findings present unexpected challenges for existing frameworks, as well as important lessons about the factors and conditions affecting judicial development in transitional states. Peter VonDoepp is assistant professor of political science at the University of Vermont. He is editor (with Leonardo Villalón) of The Fate of Africa’s Democratic Experiments: Elites and Institutions.

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