How Independent Are Courts in Africa and Latin America?

How independently does the judiciary operate in Africa and Latin America? This question has been investigated through an extensive and unique research project, the results of which were presented this week in Canberra. Over four years, GIGA researchers have examined and compared formal and informal aspects of adjudication in Argentina, Benin, Chile, Madagascar, Paraguay, and Senegal.

“A country’s level of development doesn’t automatically mean that there will be fewer attempts there to informally influence judges’ behaviour,” Prof. Alexander Stroh said of the at times surprising results. “Subtle attempts to exert influence – for example, through bribery – are similarly widespread in Argentina or Paraguay as in Benin or Madagascar.”

Through their research, the academics present a comprehensive picture of the administration of justice in the countries studied. They have focused on three elements in particular: the formal role of courts according to the constitution, the actual reach of and limitations to court activities, and attempts to influence upper-court judges.

Significant Differences in the Formal Role of Courts

The researchers first developed an index in order to measure the formal independence of the upper courts and to compare this across countries. This comparison showed considerable differences: while in Benin every citizen can bring a case before the constitutional court and the reach of the court’s decisions is very great, Paraguay exhibits relatively large deficits, particularly in terms of reach. “The formal legal situation in the countries is very different,” Alexander Stroh explained. “In Francophone Africa it is evident that the meaning granted to the justice systems in the constitutions is often still based on the tradition of the former colonial power. Overall, though, we also identified a high degree of institutional innovation.”

Subtle Forms of Interference Widespread

How do individuals actually attempt to influence the judicial system? To find the answer, the GIGA researchers conducted over 100 interviews in six countries with judges, government officials, lawyers, NGO representatives, and other experts. Their statements show that rhetorical and physical attacks, as well as threats, occur almost exclusively in the African countries. “In the Latin American countries of our study, direct and severe attacks appear to be subject to stronger public condemnation than in the African countries, making political actors there refrain from such interference,” said research fellow Cordula Tibi Weber. In contrast, all of the countries studied – with the exception of Chile – exhibit subtle forms of interference such as personal obligations, bribery, and unofficial discussions.

Judges Resign Prematurely

When upper-court judges resign from office, they rarely do so of their own accord. “In unconsolidated democracies, unpopular judges are often pressured to leave their posts,” said lead research fellow Dr. Mariana Lllanos, the project leader. “They are then replaced with candidates who will tend to decide in accordance with the wishes of certain interest groups.” This led the researchers to study how often and for what reasons judges resign. In the countries studied, almost two of every five judges had left their post prematurely as of the end of 2014 – a significant share. The number of premature departures was particularly high in Madagascar. “This can be explained by the political upheavals in the country over the last 15 years,” said research fellow Charlotte Heyl. “The presidential candidates have repeatedly tried to replace constitutional judges in order to secure their election victory, something which the opposing side in each case has contested. The formal rules regarding the appointment of judges have been interpreted very broadly – if not twisted – in the process.”

New Networks and Expanding Perspectives

With its focus on six countries in two world regions, the “Judicial (In)dependence in New Democracies” project represented a big gain for the participating researchers. “The project made it possible for me to look at my research region, Latin America, through the eyes of another region,” said Mariana Llanos. “As a researcher one often assumes that one’s own theories apply to different parts of the world, but that isn’t always the case.”

The added value of this approach is reflected not only in the research results but also in the academic process: “We’ve undertaken work in an up-and-coming field of political science, have established international networks, and have been able to initiate several follow-up initiatives,” said Alexander Stroh. Through the project’s workshops and conference presentations, international junior researchers in particular have been exposed to new starting points for their research.

The research project was funded by the Leibniz Association under the funding line “Frauen in wissenschaftlichen Leitungspositionen“ [Women in Academic Leadership Positions]. The findings, which have also been discussed in several other forums, were presented on 10 March at the Australian National University in Canberra.