Justice for “Big Men”: Political Competition, Weak States, and the Determinants of Judicial Independence in Sub-Saharan Africa

Abstract

Judicial independence, the ability of judges to exercise meaningful authority free from the constraints and influences of other powerholders, is universally recognized as a critical component to consolidated democracies, the rule of law, and economic development. So far, however, it has eluded many states in Sub-Saharan Africa. This thesis explores the political and institutional factors that contribute to varying levels of judicial independence in Sub-Saharan African states. The widely accepted literature claims that heightened political competition leads to increases in levels of judicial independence. This thesis argues, however, that the relationship between political competition and judicial independence depends on the broad institutional features of a state. In environments where formal political institutions are weak and neopatrimonial structures strong, heightened political competition actually results in lower judicial independence. Focusing primarily on executive-judicial relations in the higher courts, a model investigating the incentives facing judges and executives is developed. During periods of heightened political competition, weak institutions and neo-patrimonial politics tip the balance of incentives in favor of lower judicial independence. The unpredictability of power struggles in weak institutional settings and the high costs of being displaced from power due to patronage networks cause executives to adopt short time horizons. As a result, they become more preoccupied with immediate electoral concerns over long-term institution building. In this context, independent courts pose a threat to executives seeking electoral victory, leading executives to manipulate the judiciary in hopes of securing favorable decisions. Judges, faced with increased threats from the executive, are incentivized to defer to government interests. Quantitative analysis using cross-country longitudinal measures of judicial independence finds that political competition indeed has a significant and negative relationship with levels of judicial independence across the vast majority of Sub-Saharan African states. Case studies of Zimbabwe, Zambia, and Ghana mostly confirm the general argument of the thesis. In Zimbabwe, a case of weak institutions, increasing opposition strength led to a dramatic purge of the judiciary in 2000 that crippled a formerly robust legal system. In Zambia, where formal institutions have been somewhat more entrenched, political competition led some presidents to interfere in courts. However, international donor pressures partially constrained interference during later administrations. Lastly, Ghana’s more robust formal political institutions and strong tradition of stable party competition provided a favorable environment for the development of judicial independence. Beginning in 1992, executives generally refrained from interference even during periods of heightened political competition. The interaction between the broader institutional environment and political competition in determining levels of judicial independence suggest that judicial reform measures must be aware of the larger context in which judges and executives act. If isolated from other initiatives, judicial reforms in weakly institutionalized states are likely to be eroded by executives when political competition increases. Ideally, judicial reform should accompany electoral reform and government capacity-building. Targeting private actors rather than the government may also be a more promising strategy for improving the strength of judiciaries in African states.