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Article

Rebecca Hamlin and Gemma Sala

The judicialization of politics is an expression that has been widely used in the fields of comparative law and judicial politics alike since it first emerged in the 1980s. Yet, despite its ubiquity, it is difficult to ascertain its specific meaning because it is used to refer to such a wide range of court-related phenomena and processes. Despite its varying usages and meanings, there has been a puzzling lack of scholarly discussion over the scope of the term, and very little critical analysis of its use. This silence has impeded the project of comparative constitutional law. So it is necessary to disentangle and compare the many faces of judicialization that are used in various political science literatures. There are as many as nine distinct forms of the term that are regularly used; yet the various empirical strategies for measuring, defining, and documenting this phenomenon are often incommensurable, and further, the causes of judicialization frequently overlap and occasionally contradict one another. The popularity of this term has come at the cost of conceptual clarity, and this confusion has impeded both the project of building a comparative theory of judicialization, and efforts to have a coherent normative debate about its consequences. With the goal of theory building in mind, a systematic study of judicialization and its multiple usages can be a useful way to illuminate key questions for a new research agenda geared toward a deeper and more nuanced understanding of this term.

Article

In a liberal conception of democracy, courts play an important role in facilitating the rule of law by controlling the abidance to rules and by holding the political branches of government accountable. The power of constitutional review is a crucial element for exercising horizontal accountability. Courts across Africa are vested with the power of constitutional review, and, generally speaking, their independence has substantially increased since the beginning of the 1990s—although African courts enjoy overall less independence than the global average for courts’ independence. Within the African region, the level of judicial independence varies widely, between contexts that rarely allow judicial independence and contexts where courts have more power to challenge the government. Furthermore, across the continent, African courts experience undue interference—which frequently takes place informally. Informal interference can occur through the biased appointments of judges, verbal and physical threats, violent attacks, the payment of bribes, or the ouster of sitting judges. Informal networks—held together by ties based on shared educational trajectories, common leisure activities, religion, kinship relations, or political affiliations—are the channels through which such pressure can be transmitted. Yet judges also can actively build informal networks: namely, with the legal community, civil society, and international donors, so as to insulate themselves against undue interference and to increase institutional legitimacy. Research has shown that the agency of judges and courts in signaling impartial decision-making, as well as in reaching out to society, is crucial to constructing legitimacy in the African context. In contrast, the explanatory power of electoral competition as an incentive for power holders to support judicial independence is not straightforward in the context of Africa’s political regimes, where the prospect of losing office is associated with financial, and in some cases even physical, insecurity. However, research on judicial politics in Africa is still only preliminary, because the field requires more comparative studies in order to fully reveal the political repercussions on Africa’s judiciaries as well as to delineate the scope conditions of the prominent theories explaining judicial independence.

Article

There is a global trend of democratic retrenchment across the world, in both new and more established democracies. The African continent is part of the trend, although there are distinct regional variances on the continent. Yet, despite democratic gains in some states and along some dimensions of democratic rights, the overall trend is that the democratic gains won in the period after 1990 are now eroding. Democracy is challenged in ways that pose threats to freedom of speech, association, and information, the ability to choose political leaders, protection of personal integrity and private life, and the rule of law with recourse to independent courts. As part of a global trend of democratic backsliding, African states have adopted legal restrictions on key civil and political rights that form the basis of democratic rule in a range of countries, from dominant party regimes such as Zimbabwe, Rwanda, and Tanzania to competitive electoral democracies like Zambia, Senegal, and Malawi. In South Africa, where democracy and rule of law appear deeply institutionalized, the succession battles and exposed levels of corruption under President Zuma, now removed from the leadership of the ANC party, suggest a weakening of the institutions intended to check executive powers. The September 2017 court annulment of the Kenyan elections suggests that the courts were able to perform an important accountability function and safeguard free and fair elections. Yet, the aftermath of the 2017 Kenyan elections culminated in early 2018 with President Uhuru Kenyatta closing down television and radio stations. Civil society actors, policy makers, and scholars warn against the democratic backlash and its negative implications for domestic and international politics. Internationally, the African democratic backlash challenges global actors who have long pressured developing countries to politically liberalize. Yet, following what appears to be a global trend of democratic backsliding, space for international influence and the spread of liberal norms is closing rapidly. Domestically, the observed backlash against democracy may pose further social and political threats with wide-reaching implications for development. This may, in turn, challenge the implementation of Sustainable Development Goals (SDGs). Whereas closing space for civil society impacts first and foremost on voice and participation, restrictions on civil society ultimately may curb even the most seemingly apolitical activities such as humanitarian relief. At present, there is limited understanding of possible response mechanisms to the conscious attempts at democratic rollback from political elites. How do activists come together to advocate for particular rights? When are activists more effective in generating mass citizen support for their campaigns? How can researchers, international actors, and domestic civil society organizations work together to disseminate and use knowledge about organizational resilience in these circumstances? These will be pressing questions for scholars and activists going forward.