Friday, 2 September 2016


In this blog post, I make the claim that insistence on litigation has unduly given prominence to the judicial branch of government at the expense of the representative arms of the State; thereby disempowering the masses.

The putative father of the Constitution, James Madison, thought the legislative branch of government would emerge as the government’s strongest arm;

In republican government, the legislative authority necessarily predominates.”[1] 

He posited that as the branch of most proximate to the people, coupled with its law making ability, it would emerge the most powerful.[2] However, with the post-World War II emergence of global constitutionalism and its features of written constitutions with declarations of fundamental freedoms, judicial review and rejection of legislative sovereignty, the power of courts, particularly Constitutional Courts, has grown exponentially.[3]

It has long been understood why policy makers would rather delegate policy making authority to the courts thereby allowing for their growing influence. This reduces their own decision making costs and shifts responsibility to institutional apparatus. Further, politicians can rely on the judiciary's apolitical and professional image to gain more support and legitimacy for otherwise controversial and possibly outrageous policy choices.[4] In this way, political decisions are insulated from popular political pressure. This has been the gradual progression from democracy to juristocracy, where more and more decisions are left to and thus made by the least representative branch of government – shielded from the fundamental base of any democratic matrix: the people.

However, and particularly in Zimbabwe, there is a similar relationship between citizens and the judiciary. Just like the policy makers, the general populace would rather shift the decision making role to the courts in lieu of demanding it from their elected representatives. The last general election was held further to a court challenge. It was the judiciary which set the date for the election. The decision to outlaw child marriages was made by the judiciary and not the legislative branch. In fact, activists are now advocating for the legislative branch to follow up on the court’s decision. A myriad of issues including ZBC licensing and absence of laws on devolution have been brought to the courts ahead of popular expression or sustained lobbying of representative arms of government.

There are many possible reasons for this phenomenon and it is, indeed, not anomalous for the courts to be called on to resolve controversies. What is remarkable is the extent to which they have been called in Zimbabwe at the expense of other branches of government. People generally have more confidence in the courts due to their professional and apolitical image. Further, legitimacy questions arising from elections have reduced people’s faith in their elected representatives and the political architecture. There is also the scourge of violence that is unleashed on any form of popular expression that is deemed to be against the State. Thus, just as the policy makers would rather that the Courts sanitise any controversial policy measure, the people would rather the Courts reduce the personal risk and political costs of any disapproval from the State through their cloak of legitimacy; everyone can hide behind the adage that the courts have spoken! Thus the politician can remain in power, safe from public pressure whilst the people can also have a binding decision reached whilst safe from police brutality. The courts become the great sanitiser in that scenario.

Another reason though, is that of lack of access. Parliament is detached from the people. Demonstrating within a proximity of parliament is actually prohibited. Further, once people elect their representatives, their voice is only heard through committee hearings (which do not need to take their views into account) or public demonstrations (which tend to involve violent confrontations with the police). By contrast, the Slovenian constitution provides for popular initiatives. That is to say, four thousand voters can get the legislature to vote on a proposed legislative initiative whilst forty thousand voters can get a referendum to reject proposed legislation.[5] Other legislatures provide for a process of recall of legislators by voters. In Zimbabwe once the election is done, participation in governance tends to also be over. Similarly, the executive is insulated from the people with no mechanisms for engagement. This leaves only the judiciary as the accessible avenue for redress. 

Thus as other branches of government retreat from the popular political pressures, the judiciary’s power and influence grows. However, since the Judiciary itself is appointed by the executive – this growing influence can be manipulated by the executive by delegating controversial measures to the unelected branch of government (which the populace views with a semblance of legitimacy) as a ploy to keep the masses without a voice and disempowered.
When political parties filed an urgent application for the release of election results in 2008, every other action was halted and strategy suspended until the courts had spoken. This is just one example of how institutional features such as rules of sub judice make the courts particularly disempowering. Any movement which is led by legal practitioners is likely to overstate the role which litigation should play in the democratic process. It is vital to hold all branches of government accountable and to revive their representative function rather than burden one branch of government in the (mistaken) hope that, because of their professional and apolitical outlook, they will always be the ‘good guys.

David T Hofisi is a human rights lawyer and writes in his personal capacity

[2] See number 1
[3] See Dejonge Matthias,Faculty of Ghent University, Academic Year 2014-2015: Constitutional Courts: Democracy vs. Juristocracy?
[4] See Number 3 at page 25
[5] See also the Constitution of Croatia

1 comment:

  1. The general theme runs true. Some people have summarized it as judicialisation of politics. They also warn however that in the long run the over reliance on the judiciary to resolve political contestations has the effect of politicizing the judiciary which in a sense ultimately weakens the judiciary as its independence and impartiality is brought to question. It then potentially puts the judiciary at loggerheads with the political class. The # zumamustfall movement's strategic use of the litigation (the judiciary) sometimes referred to as lawfare is a case in point. It will increase tension between the judiciary and the Executive. I agree with you that the Judiciaries role in deciding in matters of electoral democracy has not been properly analysed. In many countries despite the formalities of people (sovereign) participation in choosing leaders, when it came to the crunch, it's the unelected branch (the judiciary) that has called the final shots and decided who should rule. The recent cases in point are Kenya, Uganda, Zimbabwe, Ghana and now Zambia.