Abstract
The world over, it seems now there is no boundary over what courts can do in a democracy. Courts are now given to making decisions with far-reaching consequences and implications upon democracy in every facet of life, be it politics, health, public administration and public policy, science, and at times, even making determinations that seem to encroach upon powers of the other branches of government―the executive, and the legislature. This phenomenon has come to assume the label “judicialisation of mega-politics” or, in other circles, “judicialisation of pure-politics”. This paper analyses a bouquet of literature on the subject, to explicate the current state of affairs on this question in Malawi. In this way, it strives to contribute on principles which might inform courts in Malawi over when to jump in and when not to so as to avert counter-majoritarianism, this unjustified encroachment by the judiciary onto the constitutional realm of bodies charged with making political judgments. The discussion demonstrates that judicialisation of pure-politics has come to stay in Malawi and that, as far as the question of certainty is concerned, the phenomenon has inflicted a devastating blow to both politics and public administration so much so that politics now looks to courts for every direction, a conundrum that is fast turning democracies into de facto “juristocracies”. The phenomenon has also transformed running of government, nearly rendering inept the very sacrosanct object of the public service―effective and efficient delivery of public goods and services to the Malawian population. The paper therefore argues that, unless administrative and political decisions immoderately infringe the people’s rights, political questions ought to be left in the hands of non-formal institutions—political questions for political solutions, or political solutions for political questions.
The notion of judicialisation of mega-politics
Judicialisation of politics simply refers to “the way political decision-making is increasingly undertaken by the courts or other legal institutions” (Arter, 2006, p. 246) (emphasis mine). In Malawi, such other legal institutions would include the Office of the Ombudsman, and the Malawi Human Rights Commission. Hirschl (2006) simply characterises judicialisation of politics as that “ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies” (p. 721) (emphasis mine). Like Hirschl, Dressel (2012) talks of “the growing involvement of judges in core controversies and deep moral dilemmas, from executive branch prerogatives and regime change to restorative justice and elections, and ultimately to questions of nationhood itself” (p. xiii) (emphasis mine).
Writing on the trend of judicialisation of mega-politics in the European Union, Adam (2016) citing Hirschl (2004) has observed that some scholars there have concluded that democracies there have become dominated by courts and judges, and have thereby evolved into de facto “juristocracies”. Judicialisation of mega-politics has therefore been described as “government of the judges; judicialization of political power; judiocracy; juridiciocracy; juridification; judiciarism; juridicization; government by the judiciary; judicial activism, political jurisprudence, and juristocracy” (Nogueira, 2020, p. 670).
Adam (2016, p. 44) cites Kelemen (2006; 2011) as referring to judicialisation of politics as “a system that—similar to the dominant policy style of adversarial legalism in the USA—relies more heavily on courts, litigation, and detailed judicially enforceable rules than on traditional approaches to policy-making, emphasising stable, closed networks, and informal agreements.”
Some scholars have used the term to describe “a more general process through which law-making by judges increasingly ‘shapes the strategic behavior of political actors engaged in interactions with one another’” (Adam, 2016, citing Stone Sweet 1999, p. 164). In Malawi, for example, the orders that followed the annulment of the 2019 Presidential Election in the country have been viewed with scorn by some critics for overreaching in the sense that the Judges seemed to have assumed some pure policy-making or legislation-making powers when they ordered the Legislature in the country to pursue particular directions. Following that, Malawian courts have found themselves vetting a number of parliamentary elections, after losing candidates sought relief at the mercy of the judicial officers. As I am writing this, a political sumo wrestling within the Democratic Progressive Party over who the rightful Leader of Opposition in the Malawi’s unicameral Parliament is, has barely subsided even after it had been taken to formal court settings for arbitration. At the height of the Covid-19 pandemic, courts, and this against professional advice from health experts in the country, stopped Government of Malawi from implementing some measures to contain the spread. In every sense, and this is in my sense, the judiciary in Malawi has become hyper-active.
According to Dressel (2012), when considering drivers of the phenomenon of judicialisation of pure-politics, literature tends to prop on two approaches: “judicialization from below via social demand for rights protection and limited [while others stress the] strategic decisions by elites to secure their interests through counter-majoritarian means creating judicialization from above” (p. 2). Perhaps judicialisation from below is also responsible for the protection of political rights or else how would political-economy factors expect the interests of the elites to conspire against themselves by protecting political rights? In short, scholars who conceive judicial activism from below, lay emphasis on bill of rights and other provisions that seek to enhance social, cultural and economic rights, while those who perceive judges as exacting their influence from above consider heavily the pressure or influence upon courts of elite interests made more pronounced in neo-patrimonial settings of most, if not all, African regimes.
It must be stated from the outset that, as far as insights on this subject on Malawi is concerned, the greater part of this discussion relies on contributions by Kanyongolo (2016). Kanyongolo’s extensive analysis of this question on Malawi is both informative and instructive.
Why a discussion on judicialisation of pure politics
Debate on judicialisation of pure politics has never been conclusive. This is because the academic chasm between those who call for judicial restraint (withdrawing from mega-politics of their free-will rather than out of fear, the latter phenomenon known as judicial muteness) and those who espouse revolutionary judicial hyper-activism keeps widening. As a student of public administration with some knowledge of law, I always seek to see a balance—going the revolutionary route only where the people’s rights are immoderately threatened, but leaving politics to deal with all questions politics, or letting public policy take care of all issues public administration unless public interest is at stake. I am inclined to say that the direction my country is taking as far as matters judicialisation of pure-politics are concerned is concerning; I have to give my opinion on it as a free citizen. Remember that “the faith that so many people have placed in the judiciary is one of the defining characteristics of our age” (Beatty, 2004, p. 22).
Thus, this faith must be put to check in the fashion of a warning from Carrington and Cramton (2009). The two authors caution that uncritical fidelity to the judiciary can be costly especially where public policy itself comes to be dependent on courts, leaving the constitutional duty of providing public goods and services at the mercy of judicial officers rather than in the hands of public administration. What all this means is that, where hyper-activism begins to be seen to replace democratic processes, those who can debate must come in. Carrington and Cramton (2009) proffer a reason for this, namely that, “a failure by the profession to criticize judicial misdeeds deprives judges of the sense of moral accountability to their peers that is sometimes needed to reinforce their capacity to know and restrain themselves” (p. 1108).
Our pursuit of judicial independence is therefore critical since “a complete decisional independence of the judiciary that gives free hands to the courts to decide on all cases should be put to check through judicial accountability. The court should be accountable to the general public and other arms of government; this will ensure a complete operation of rule of law” (Salihu & Gholami, 2018, p. 671, citing Burbank and Friedman, 2002) (emphasis mine). Thus, in the same way we monitor public administration or the public sector as the face of the state, we must monitor opinion of the courts to help our democracy flourish. Remember, “the judicial opinion is the public face of the judiciary, in much the same way that a statute is the public face of the legislature” (Popkin, 2007, p. 1).
The crux of this argument is that courts must be monitored or democracy itself may begin to lose direction. One simply has to take into consideration the total picture of the African political terrain to appreciate these fears. In Africa the notion of politics does not correspond to that of the West. According to Chabal (2005, p. 4),
Politics in Africa is best understood as the exercise of patrimonial power. What this means in concrete terms is that, despite the formal political structures in place, power transits essentially through the informal sector. Or rather, it is in the interplay between the formal and the informal that power is exercised on the continent. This form of governance, often dubbed neo-patrimonialism, rests on well understood, if unequal, forms of political reciprocity which link patrons with their clients along vertical social lines. The operation of political institutions is thus very largely conditioned by the exercise of personalized power. Politicians use official bodies for their own, patrimonial, purposes—regardless of the effect such behaviour may have on the institutional well being of the government. The logic of the political system, therefore, does not correspond to its Western equivalent. Bureaucrats, for example, are seen not primarily as the impartial servants of public service but as links in the patrimonial chain that connects patrons with their clients. (throughout emphasis mine)
It could therefore follow that, in Africa, more than anywhere else, the problem of competing principals is a truly going concern. The notion of competing principals refers to a situation where agents (judges, etc.) or those sent on trust (MPs, etc.) find themselves torn between serving two masters or principals (Lindstädt, Slapin, & Wielen, 2012). In our case, the first principals are the people or public interest, and the second, those who promote the welfare of those representing the people. Members of Parliament, for example, are torn between serving the people (the true principals) and the party leaders or even national leaders (the lesser principals yet responsible for dispensing favours and resources in neo-patrimonially-captured settings of Africa). Thus, unless people begin to take a lot of interest in these things, democracy may begin to go insipid.
People also take a lot of interest in issues judicialisation of pure-politics because appointments of officers of the judiciary, even in mature democracies themselves, have always been political, quid pro quo kind of. Of the United States, for example, Epstein and Segal (2005, p. 3), observe:
But what has not changed is that, almost without exception, presidents from the early years of the United States to the present day have sought to exploit vacancies on the bench for ideological and partisan purposes. Senators have done much the same, supporting or opposing nominees who help further their own goals, primarily those that serve to advance their chances of reelection, their political party, or their policy interests.
Perhaps it is a simple case to state that those appointed have some duty to the one who pays the piper, and perhaps this is the reason years back one prominent legal scholar in Malawi, Professor Edge Kanyongolo (2006, p. 13), made the following recommendations on matters regarding judicial appointments:
Judicial appointments must be made more transparent. The criteria on which judicial officials are appointed must be made public and those who fail to be appointed must be informed of the reasons for their failure. Similar rules must be introduced with regard to promotions. In addition, the process must become more accountable to the public through their democratically elected representatives. Membership of the Judicial Service Commission must be expanded to include representation from Parliament, at the very least. The appointment of judges of the High Court should be subjected to parliamentary confirmation (as for the chief justice) to further promote democratic accountability of the judiciary.
Am I insinuating that the fact that patrons are involved in some appointments means those appointed are likely to dance to steps of the payer? Not necessarily. In fact, I'm not blind to the wisdom in Carrington and Cramton (2009), who caution critics against bias in cases where they feel offended because a particular case had not been decided in their favour. Besides, as observes Tarr (2010), it is common knowledge that “critics often see a dereliction of judicial duty in every decision with which they disagree” (p. 255).
Judicialisation of politics has also become an issue because, the world over, trust in parliament as a prime policy-making assembly is waning fast (Leone, 2017). By trust, I mean “the expectation that policy will correspond to public wishes” (Prebble, 2012, p. 4, citing Bouckaert & Van der Walle, 2003).
The infectious waning public trust in Parliament has not spared the civil society organisations in Malawi. And this is happening at a very wrong time, for at no point in the history of our democracy has there been a greater need for more interventions by non-state actors. This is largely because every democracy, even in mature nations, keeps negotiating turbulence upon turbulence. The situation is dire in most African states owing to the fact that space of democratisation on the continent is dwindling fast. This is not to say that no gains have been made at all in Africa, but that, to cite Ibrahim (2015), the gains have been modest. According to Ibrahim, a number of reasons explain this defect. First, most African countries or governments have taken mere electrolisation for genuine democracy. For him, equally important is the fact that a vibrant civil society and a people-centric form of deliberation have not been given the emphasis and space due them.
On the important role civil society organisations play, Encarnación (2003) had aptly observed that it does not matter where one is, but the likelihood that any political opening can evolve into a consolidated democracy appears to depend upon one indispensable condition, namely the emergence of a vibrant and robust civil society. Encarnación therefore equates a strong civil society with successful democracies, and a weak civil society with failed or flawed democracies.
The terrain for the CSOs in most African countries, however, has not been smooth. On this, evidence shows that from the year 2000, a number of African countries, for example, Egypt, Eritrea, Ethiopia, Sierra Leone, Uganda, and Zambia, have passed restrictive civil society laws while others have increased their role in their monitoring or persecution of civil society organisations and leaders (Ibrahim, 2015, p. 3, citing Elone, 2010). Ibrahim has also cited Dupuy, Ron, and Prakash (2012) as observing that over one-third of the countries in Africa have passed laws that allow them to strictly regulate civil society or at least restrict their ability to benefit from foreign funding (p. 3).
This problem has been compounded by another of the Africa’s CSOs’ own making, namely their dominant form of lobbying―interest lobbying of the advocacy model. In Malawi, for example, the dominant mode of engagement is the advocacy model rather than the deliberative model.
According to Hendriks (2011), citing Dryzek (2000b), at the centre of the deliberative model is public reasoning. In this, “deliberators engage in a social process of mutual justification; informed policy arguments are put forward, justified, and debated in view of collective outcomes” (p. 4). Citing Cohen (1997), Hendriks adds that those arranging of these forums cherish the power of listening and being open to the arguments of others, and that they allow reason to shape their views. Hendriks then cite Gastil (2008) who demonstrates that the goal for this is to arrive at a judgement derived through a thorough public consideration of relevant issues and their collective implications. Deliberation is therefore compatible with deliberative democracy because it represents a reflective process where participants put aside their particular interests and make judgements in view of the collective good (Hendriks, citing Cohen, 1989; Elster, 1997). In this way, the deliberative model does not impose its wishes upon the people but subsists in consensus or inclusion.
On the other hand, interest advocacy, common in Malawi, is more adversarial and interest-based (Hendriks, 2011). Hendriks adds further that “under the advocacy model, organized groups, activists and empowered individuals attempt to influence the policy process and outcomes by articulating a position and putting pressure on decision makers, institutions and the broader public” (p. 3). In short, it is their positions rather than the people’s that they present. Thus, they consider their job done once their position (rather than the people's) is met. When a government finds pleasure and supports that position, such CSOs eventually align with such a government, in some cases, with known authoritarian regimes. In fact, Kew and Oshikoya (2014) have pointed this out, observing that “some civil society organizations in Africa align themselves with state policy objectives in order to gain the support of regimes and authorize the implementation of policies, rather than challenge detrimental policies and practices” (p. 10).
Most CSOs in Malawi fall under the interest advocacy model rather the deliberative model. As I write, the CSOs in my country are split in half, one half vehemently pro-government, the other faithful to the opposition. In such a terrain, where the judiciary fares somehow fairly on trust, the people look up to judicial officers to salvage something for them in the wreckage of democracy, perhaps giving credence to claims that the judiciary has now become the last hope of a common man (Bayor, 2013, as cited in Salihu & Gholami, 2018). In short, the judiciary too ought to be put to check lest it should begin to expose itself to the trappings of power in the neo-patrimonially-captured institutional environment of Africa.
The last reason citizens have to take keen interest in matters judicial is that democracy itself subsists in doubt. It is said that democracy is a system of government that depends on ‘mistrust’. This explains why though (every five years) we go to the polls to elect our representatives or the President (vertical accountability), we still (in between) put in place mechanisms to ensure that what they are doing is indeed representing the preferences and wishes of the people (horizontal and diagonal accountability). By the same token, the executive is pitied against the legislature and the judiciary to allow a healthy ‘conflict’ to balance powers. Take this mistrust out of the equation, democracy will in no time turn into a dictatorship
Examples of helpful judicialisation of pure-politics
Contrary to many a sentiment that labels Judicialisation of pure-politics as an evil, the phenomenon does have a redeeming side to it as far as processes of democratic consolidation are concerned. Perhaps this is the reason Sallon (2005), writing of Israel, observes that “frequently denounced as a blow to majority democracy [it is also] praised as the expression of the rule of law” (p. 289). When the judiciary falls under the spell of the elites, what Hirschl (2008) describes as “mega-politics, [that is] matters of outright and utmost political significance that often define and divide whole polities” (p. 93), occurs. In other words, judicialisation from above is what produces most controversies and divisions, otherwise, as the following two stories―one from Nigeria, and the other from Malawi―will prove, judicialisation of mega-politics has not always been a bad dog.
In Nigeria, events following the fallout between President Olusegun Obasanjo and his Vice, Alhaji Atiku Abubakar, made news besides splitting opinion in the country. It is said that, following that fallout, it started in 2004, Obasanjo had invoked state institutions to withdraw all Atiku’s privileges and staff, before openly threatening to remove him from office through the legislature (Yusuf, 2008). Yusuf adds that the move floundered when the legislature failed to remove him. However, President Obasanjo had plan B, expelling him from the party—People’s Democratic Party.
Yusuf (2008) explains further that when Atiku Abubakar joined the Action Congress (AC), later as its Presidential candidate, Obasanjo “set out to frustrate the move by deploying varied administrative and political mechanisms in what came to be the most profound instance of political elite-power wrangling within a civil administration in the country” (p. 239). The Independent National Electoral Commission (INEC) was therefore unleashed to disqualify Atiku. The INEC is said to have based its decision to disqualify Abubakar on an indictment by the so-called Administrative Panel of Inquiry, one set up by the President himself. The Panel had found Abubakar culpable for abuse of office in his capacity as the Chairman of the Petroleum Development Fund, one of the agencies under the office of the Vice-President.
When the Action Congress and Atiku Abubakar sought court intervention to challenge the decision, the Federal High Court (trial court) decided in favour of the AC and Atiku. However, when the INEC appealed to the Court of Appeal, the judges allowed the appeal thereby upholding the decision by the INEC. This time, Action Congress and Abubakar appealed to the Supreme Court (the Court). According to Yusuf (2008), “in its unanimous decision allowing the appeal, the court held that the defendant lacked constitutional or statutory powers to disqualify any candidate in the 2007 elections” (p. 240). Good judicialisation of mega-politics; judicialisation from below.
In Malawi on February 8, 2006, our President at the time, Bingu wa Mutharika, wrote Dr Cassim Chilumpha, Malawi’s Vice-President at the time, a funny letter, accepting the latter’s purported “constructive resignation”. Here is just a portion of the said letter:
In the light of the foregoing, I hereby inform you that the Cabinet has unanimously decided that you have, on your own volition, not worked in accordance with your mandate as Vice-President of our country. Cabinet is therefore obliged to construe that by abandoning your responsibilities, you have accordingly resigned from your position as Vice-President of the Republic of Malawi.
I have, therefore, with deep regret, accepted your resignation as Vice-President of the Republic of Malawi effective today, 8th February, 2006.
Thus, it was about the same period the Supreme Court in Nigeria saved Atiku’s political life that the Constitutional Court in Malawi came to the rescue not only of our politics, but also of the rights of this helpless individual, Dr Cassim Chilumpha. And what more, the reasoning therein was well-balanced and brave:
To conclude my conclusion I must say therefore that my consideration of the issues weighs heavily against concluding that the framers of the Constitution envisaged a constructive resignation. Quite apart from the fact that there is no direct provision to that effect I think that to conclude so would result in an absurdity and would set up one part of the Constitution against the other. One organ of government against another. We would have the absurd situation where the State President could without reference to the National Assembly and the dictates of section 86 succeed in removing a sitting Vice President which is clearly not what the drafters of the Constitution had in mind. In other words he would be able to get through the backdoor what he cannot get through the front door. (throughout emphasis mine)
This is good judicialisation, judicialisation from below, one that brought the President back to his humble seat. These were the early days of our democracy when the courts were preoccupied with judicialisation from below. Perhaps it explains why between 1994 and 2003 alone, the High Court (in Malawi) decided against government in 54 percent of the cases in which the government was a party (Gloppen & Kanyongolo, 2010, citing VonDoepp, 2006; 2009).
Causes of judicialisation of mega-politics
One explanation for increasing judicialisation of mega-politics is that most constitutions have incorporated the bill of rights, thereby indirectly inviting judicial officers in. Of Canada, for example, Hunt (2013) reports that judicialisation of pure-politics had increased there following the adoption in the country of the Charter of Rights and Freedoms in 1982. Hunt narrates further that this charter was included in a new Constitution Act (1982). It is important to note that, before this, Canada had a predecessor document known as the Canadian Bill of Rights, but had not been as robust and popular.
Thus, with the “adoption (of the Charter of Rights and Freedoms in 1982) came a strong judicial review of legislation as well as executive acts” (Hunt, 2013, p. 7). According to Waluchow (2007), the reason for this is that the Charter of Rights and Freedoms had included a number of abstract rights of political morality that federal, provincial, and municipal governments were legally barred from infringing. Waluchow therefore argues that the presence of the abstract rights inevitably meant courts were implicitly invited in to give clarity where a party sought specificity. Citing Russell (1994), Hunt writes that this situation has therefore expanded the Canadian judiciary’s sphere of activity, and thus increased the judiciary’s power there.
The same can be said of Malawi, which approved a draft Constitution in February 1994, one she adopted provisionally on May 18. This date—May 18, 1994—happens to be the very one on which Malawi conducted the first multiparty elections following the June 14, 1993 Referendum. This Constitution came into force (permanently, on May 18, 1995). This Constitution carries a comprehensive Bill of Rights, and its adoption witnessed an expansion of the judiciary’s sphere of activity and thus, its power, especially in terms of judicialisation of politics from below.
In other countries, the level of judicialisation, also called hyper-activism, has reflected the nature of activism, or simply the level of activism in the person heading the judiciary. In Pakistan, for example, it was during the leadership of Chief Justice Iftikhar Chaudhry that the Court there was described as most interventionist in that country’s history (Husain, 2018). Husain writes that in 2012 the Supreme Court of Pakistan unilaterally and retroactively disqualified the country’s Prime Minister, Yusuf Raza Gilani.
Iftikhar Chaudhry retired in 2013, following which the Court seemed to have adopted a policy of judicial restraint (Husain, 2018). Husain observes further that despite this, the Court later took a confrontational approach when, in 2017, it disqualified Prime Minister Nawaz Sharif for allegations of corruption.
As far as the question of judicialisation of politics in Japan is concerned, the position of the country’s Supreme Court appears mixed. Matsudaira (2011), for example, reports what Matsui (2011) observes namely that the Supreme Court of Japan is self-restrained because it is staffed with Justices who share a collective mentality of self-restraint. Matsudaira further reveals what Matsui believes as the origins of this passivism, namely traditional German constitutional philosophy which leaned on the positivist interpretation of the written constitution that was dominant in prewar Japan (p. 1559). However, Matsudaira (2011) himself takes the position that the Supreme Court of Japan can be active or conservative, depending on how it assesses the risk of judicialisation. What this means is that unless a decision immoderately violates the people’s rights, the Supreme Court has no business turning every political question into justiciable cases (p. 1569).
As for Latin America, Huneeus, Couso and Sieder (2010) have demonstrated that “in recent years several high courts [there] have begun to cast themselves as defenders of rights and to intervene in significant political controversies” (p. 3). This signifies a growing tendency for judicialisation in those countries too. The three authors explain this by demonstrating that courts there have now been given greater powers and long lists of social, economic, and cultural rights, and also that international treaties now assume a significant role in respective constitutions there.
Penal populism is sometimes said to have contributed to increasing judicialisation is some countries. Populism is “a political response that favors popularity over other policy considerations” (Roberts, Stalans, Indermaur, & Hough, 2003, p. 3). Penal populism, also called populist punitiveness, therefore, refers to policies advanced merely to win votes without regard for their effects. In other words, “penal populism consists of the pursuit of a set of penal policies to win votes rather than to reduce crime rates or to promote justice” (p. 5).
A good example of penal populism is where the public claims loudly that incidences of crime are getting out of hand because punishment to criminals is getting lenient by the day, and some politicians quickly get a cue from this, seizing it to incorporate the sentiment in their own campaign language. In their response, such politicians will promise a tough stance against crime, not that they are serious about fighting crime, but because it is the language that the ordinary people are making, one the politicians will ignore at their own risk especially when it is close to elections.
Penal populism therefore “speaks to the way in which criminals and prisoners are thought to have been favoured at the expense of crime victims in particular and the law-abiding public in general” (Pratt, 2007, p. 12). In essence, “it feeds on expressions of anger, disenchantment and disillusionment with the criminal justice establishment” (p. 12).
Judicial officers often come under attack by penal populists over sentencing. For example, the public might express dissatisfaction with some punishment, describing it as inadequate. In this way, the court might take a cue and begin to perform with the mind to please penal populists, that is, at the expense of rights of the accused.
Penal populism is not entirely wrong, in my opinion, because in some cases criminals ought to take notice that the public is incensed and that it wants a particular dangerous behaviour stop. However, it becomes a concern when both parliament and the judiciary and even the executive act entirely on penal populism.
One may dismiss the effect penal populism may have on the judiciary, but the fact of the matter is that sentiments of the people are always taken into account in public policy. In the fight against corruption, for example, politicians will neglect penal populism at their own peril. This is because research has demonstrated that, politicising corruption, that is, using corruption as main message for campaign always gives very high returns. In fact, Curini (2018) quotes Bågenholm and Charron (2014) as demonstrating, in a study covering both Western and Eastern European countries, that, even “new political parties that do politicise corruption are more successful than new parties that do not” (p. 6). In other words, if two political parties are born at the same time, and begin campaign on the same day, the one which uses anti-corruption as the heart of its campaign will more likely win more votes than that campaigning on ordinary issues. Curini therefore concludes, reporting that “on average, politicising corruption increases a party’s vote share by about 5.6% compared with the previous election. Such evidence suggests that there is ample opportunity to politicise corruption as a campaign issue” (p. 6).
In short, in Malawi, one ought to raise a cautionary flag to ensure that some issues of politics are spared penal populism. In our Parliament in the late 1960s, the debate on the traditional court system in the country centred on penal populism. In 1969, the year the Traditional Courts were formally established as a separate (second) route of the Malawi court system, one MP had argued that courts in Malawi were toeing too much the practice line of Britain. He said that since we were now on the other side of Independence, we (Malawi) needed to depart from all that. Chanock (1976) summarises: “Taking part in the debate, other Members of Parliament objected to the English tradition of paying for the defence of the very same person who committed the offence, the presence of lawyers, and the constraints of the British rules of evidence.” No wonder, some argue that, in essence, these MPs were all demanding a harsher way of administering justice and an abridged version of arriving at verdicts, penal populism at work.
Even the debate on the Censorship and Control of Entertainment Bill, a legislative proposal presented to Parliament in March 1968 by Minister of Transport and Communication, John Msonthi, the issue bordered on penal populism. According to Gibbs, Mr Msonthi claimed that the Bill would meet “the need for us to be able to control public entertainment and publications according to our own Malawi standards in the interests of morality, decency and public order.” Three days later, this Bill was a law.
Perhaps one would conclude that penal populism could be on the increase today following the advent of the social media, and information and communications technology.
The flares of judicialisation of pure-politics can also be said to have been fanned by a weak secondary legislation culture. In the context of Malawi, primary legislation refers to an Act of Parliament. When in draft form, primary legislation is called a Bill which, when passed by Parliament, becomes an Act of Parliament and part of statute law.
Secondary legislation on the other hand, “allows the Government to make changes to the law, using powers conferred through primary legislation, often an Act of Parliament” (British Ecological Society Policy Guides, 2017, p. 3). In the UK, for example, most legislation passed there each year is secondary. Thus, “thousands of pieces of secondary legislation, also referred to as statutory instruments, are made each year, compared to a few dozen Acts of Parliament” (British Ecological Society Policy Guides, p. 3). This is important for a number of reasons: first, “it stops Parliamentary time being used up on overly technical matters, allows experts to prepare laws, and offers flexibility to deal with changing circumstances” (p. 3) (emphasis mine).
I am not suggesting that secondary legislation poses no or less problems; it does; after all, which does not? According to the British Ecological Society Policy Guides, 2017, “disadvantages include lack of Parliamentary scrutiny, removal of controversial issues from Parliament to Government, and the huge quantity of legislation generated without much public debate or oversight” (p. 3). However, for me this could be better because it would receive expert opinion besides the obvious ones from the lawyers.
In Malawi, and this is my opinion and understanding, every problem is currently being interpreted using primary legislation and nothing else. Where a section in a piece of legislation is creating problems owing to changing of circumstances, everything must come to a stop, waiting for judicial officers to give direction. Through this, public administration is taking a heavy beating; perhaps this can explain why public sector reform efforts, especially on public sector innovation and entrepreneurship, are growing more and more frustrating. In the end, institutions we have in the public sector are fast assuming a compromised character and quality.
Malawi, like most African countries, suffer low quality institution; as a result, her institutions, including the civil service, are inefficient and ineffective, lethargic and exhausted. The public sector is the largest spender and employer in virtually every developing country, and (one that) sets the policy environment for the rest of the economy (World Bank, 2008); for the reason, attempts to create quality public sector should take priority. Besides, as Koch (2006) observes, the public sector must never be understood as a passive receiver of new products, processes and services developed by private companies; it must be turned into the hub of public service innovation itself.
Gustavson (2013), citing Acemoglu, Johnson and Robinson (2001; 2003), Bigsten and Durevall (2004), Diamond (2004), Rodrik, Subramanian and Trebbi (2004), Van de Walle (2009) and World Bank (1989; 1997; 2005), demonstrates that low quality of public institutions in many African countries proffers the main explanation why the Sub-Saharan region has generally performed poorly on socio-cultural, political and economic development compared to the rest of the regions of the world. The suggestion here is that unless African countries begin to prioritise robust changes in the way the public sector is run in these countries, Africa will keep groping in the dark for a ray of development hope. The problem of low quality of public institutions creates a chasm between the public sector as the operating arm of the state in serving the people as principals and the state (as agent). In such an environment, it is easy for judicialisation from above to take root, either to assert its authority, influence and interest, or to correct matters.
Lastly, and still on institutionalisation, politics in most countries especially in Africa appears formal on paper only; the greater part of it remains informal, in fact, the biggest informal yet lucrative business. This is deliberate, deliberate because politicians know that making it truly formal, transparent and accountable means making the patron less powerful. On issues of party financing, for example, many are not willing to take the narrow path, to live the spirit of the legislation that regulates the trade. Of course, this is a universal problem as mature democracies too are reportedly struggling on this. On finance reform in politics in the United States, for example, Post (2014) writes that the issue remains one of the most vexing issues of our time. Posts proffers a reason for this, namely that reformers consider it necessary to purge the Republic while opponents view such a regulation as an attempt to curtail the freedom of speech necessary for democratic self- governance. For the reason, over the years the Supreme Court of the US has hardly maintained a single stance on the issue (Post, 2014). Despite this, reforms in political institutions ought to be encouraged, especially in Africa, or it will leave some openings for courts to fill through judicialisation of mega-politics.
Judicialisation of politics in Malawi
A number of scholars and researchers have expatiated on the phenomenon of judicialisation of politics in Malawi, and it is not the premise of this present discussion to analyse them all. This is because Kanyongolo (2016) has done a robust work on this, in which course, he has rigorously analysed almost all previous prominent discussions on the subject. This paper therefore dwells on the arguments in Kanyongolo whose paper sought to inquire whether attempts by the judiciary to use channels outside the doctrinal formal avenues as opposed to informal approaches do enhance or hinder development of informalisation. By informalisation, Kanyongolo refers to that “process by which institutions are created, located, communicated and enforced outside officially sanctioned channels” (p. 57). In simple terms, Kanyongolo seeks to understand the extent to which allowing courts to tap from the wisdom of the informal bouquet has encouraged or discouraged blossoming of institutions for the good of development in Malawi since the rebirth of democracy in 1994.
Kanyongolo (2016) has brilliantly traced the prevalence of judicialisation of politics on the Malawi terrain, first demonstrating that courts have generally taken a reclusive stance over the issue, a position he attributes to orthodox legal theories or classic legal positivist theories. According to Kanyongolo, these theories venerate absolute dichotomisation of politics and law. In other words, these theories do not take kindly judicial officers encroaching upon matters politics because these are two different terrains, guided by completely different frameworks.
Kanyongolo (2016) therefore cites a number of cases in which courts in Malawi have refused to be drawn into matters politics. In Ajinga v the United Democratic Front (Civil Cause No. 2466 of 2008), for example, Kanyongolo has benefited by the reasoning of the High Court, namely that “allowing the judiciary and judges into disputes entirely political unduly politicises the judiciary and we dare say … that erodes the public’s confidence in the judges and the judiciary and also their independence.” (emphasis mine).
From the same case, Kanyongolo (2016) taps the reason the Court (Justice Chikopa) proffers for its withdrawn stance:
Judicial officers are not best placed to decide on matters inter alia politics. The considerations operating in politics are different from those obtaining in the courts. … The courts should be slow, very slow in our humble view, to adjudicate on matter that though dressed up as legal are really political disputes. (emphasis mine).
Kanyongolo (2016) has also ably cited several cases in which the courts have prudently washed their hands over the issue, that is adjudicating on matters dressed up as legal yet are really (entirely) political disputes; they include State v The President of the Republic of Malawi, Ministry of Finance ex parte SGS Malawi Limited (Civil Cause No. 40 of 2003), where the Judge (Mwaungulu) pointed out that matters involving socio-economic policy and competing policy considerations are not justiciable. Similarly, in State v The Minister of Finance and the Secretary to the Treasury, ex parte the Malawi Law Society (Constitutional Case No. 6 of 2006), the Court made mention of this, namely that “matters of policy…should be left to those best suited to deal with them namely the people’s elected representatives and their permanent advisors, that is to say, the civil servants. We would therefore be the first to wash our hands off this case if it raised issues only of policy or required this court to evaluate socioeconomic policy or allocate scarce economic resources.”
The position seems to align with that Waltman (2015) takes, namely that judges cannot offer answers to every problem, and this is for three reasons:
Justices are not experts in various policy areas and they therefore should not substitute their policy preferences for those of legislators and executive officials. The second emphasizes that if the Court meddles too much in matters that should be left to the political branches it will stir up political antagonism and perhaps trigger retribution, ending up making the Court less powerful, not more … The third is the overworked recitation about the Court’s non-majoritarian status (p. vii)
Thatcher and Sweet (2003) define non-majoritarian institutions as “those governmental entities that (a) possess and exercise some grant of specialised public authority, separate from that of other institutions, but (b) are neither directly elected by the people, nor directly managed by elected officials” (p. 2). For being non-majoritarian yet forcing themselves to assume the responsibilities of elected members, courts have been variously described as counter-majoritarian. In the European Union, such approaches have been described as ‘Eurolegalism’ (see Kelemen 2006 and Kelemen 2011 in Adam, 2016, p. 44) which seems to suggest a new place of the Supreme Court as having become counter-majoritarian.
The concept of counter-majoritarianism suggests the tendency by the judiciary to make constitutional choices that were best left in the hands of the people (the majority) or their elected representatives (the legislature). Put simply, it was Alexander Bickel in his work published in 1962, that described it as “‘counter-majoritarian difficulty’ in trying to show that the judiciary is the most dangerous branch” (Den Otter, 2009, p. 1, citing Berger, 1977). Bickel was directly countering what Alexander Hamilton had observed in the Federalist No 78 that the judiciary is the least dangerous branch. Kanyongolo (2016) has also cited another author―Dickson (2014)―as describing the counter-majoritarian court as “the least democratic branch of government”.
Kanyongolo (2016) then cites a number of scholars, for example, Barnett (2013), Leiter (2014) and Unger (2015), who advocate open breach of the barrier between politics and law. These Kanyongolo equates to disciples of the radical legal theories, and they include the critical legal studies movement, as well as feminist and Marxist legal theories. Kanyongolo presents the rationale these scholars offer, namely that it is impractical to adjudicate without taking into account the practical reality of interaction of law and politics and other factors, economic and socio-cultural. One would perhaps summarise their arguments through the political economy mix, namely the need to consider the whole panoply of factors of power relations when making decisions.
In Malawi, a number of cases have reflected this position. Kanyongolo (2016) cites them for our consideration here.
Kanyongolo (2016) has also documented a number of reasons for increasing judicialisation of politics in Malawi today. First, he points to language in some provisions in the Constitution itself as inherently invitational. For him, section 10(1) which gives the Constitution the ultimate powers in the resolution of political disputes inevitably invites section 9 onto the scene. Section 10(1) (of the Constitution) provides as follows:
In the interpretation of all laws and in the resolution of political disputes the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority. (emphasis mine)
As for section 9:
The judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws and in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law. (emphasis mine)
What Kanyongolo (2016) observes here is in tandem with what Huneeus, Couso and Sieder (2010), observe when they state that judicialisation contains two distinct but related aspects. The three authors write that the first aspect is a result of a growing use of law, legal discourse, and litigation by a range of political actors, including politicians, social movements, and individual actors, and that this has given courts the status of a forum for verifying or interpreting such language. What Huneeus, Couso and Sieder mean by this is that, since “legislators write laws with the courts’ language and opinions in mind, and social movements, individual citizens and the political opposition alike frame their political struggles in the language of rights, they all turn to courts to advance them” (p. 8). In this way, courts have been drawn to the actual political battlefront. Perhaps this is the reason Yusuf (2008) submits that courts have therefore “been involved in adjudicating gerrymandering issues, political party funding matters, constitutional terms of office, the right to participation in the democratic process, disqualification of candidates, recognition of political parties, validation of elections and electoral outcomes” (p. 236). Recently, making recommendations on how best to enhance democratic commitment in Ethiopia, one author there, Teguada Alebachew, “insistently calls for the establishment of a legal regime to regulate intra-party democracy” (Assefa, John & Taa, 2017, p. 3), thus drawing the judicial vehicle right into the precincts of intraparty politics proper. Personally, I find this invitation misplaced. Already, we're wondering where on earth the African politician gets this appetite for courts, and no one should be fighting to entice the legislatures to open the floodgates. Personally, I find the office of judges sacrosanct, and the last thing I'd wish to see is judges being reduced to interpreting backyard issues in political party constitutions.
As for the second aspect, Huneeus, Couso and Sieder (2010), citing Tate and Vallinder (1995), submit that courts are depicted as having “embraced a new, higher profile political role that depicts them as defenders of constitutional commitments, advocates of rights, and arbiters of social policy conflicts” (p. 8). This is the same aspect Kanyongolo (2016) cites when he gives the second reason why judicialisation of politics is on the increase in Malawi. Thus, Kanyongolo writes that the second reason behind the growing tendency by courts to breach the boundaries onto the political terrain proper is that the judiciary seems just to have endowed itself with the activist function or spirit―judicial activism. In that regard, the High Court (in Malawi) has “displayed a significant degree of activism, by invalidating legislation passed by Parliament, disregarding precedent, ‘legislating’ by establishing rules of law where Parliament had made no such rule and departing from rules of statutory interpretation” (p. 61).
Kanyongolo (2016) has also pointed out scenarios where the Malawi Supreme Court of Appeal (MSCA) itself has come to constrain judicial activism of the High Court though the MSCA itself has also invited itself to activism. Kanyongolo cites the Press Trust case (Civil Appeal No. 22 of 1996) as a classic example of activism by the MSCA when it triggered the ‘doctrine of necessity’ to reject the appellant. A discussion of this will follow to determine the extent to which what the MSCA did here would be said to have constituted judicial hyper-activism.
It is important to mention that evidence in Kanyongolo’s discussion suggests that the interaction of formal institutional factors and informal institutional factors has drawn the courts to a new yet difficult sphere. In this new terrain, the judiciary finds itself endorsing some informal decisions, spurning others in some cases.
In the wisdom of Kanyongolo (2016), in some three ways the courts are being seen to perpetuate informal decisions, for example, those made with underlying neo-patrimonial undertones. First, it has endorsed or reinforced customary law and its institutions yet customary law is often deemed imprecise and so are all informal institutions and aspects therein. Strictly speaking, such aspects, for example, oral tradition, could hardly find favour in formal frameworks. The effect of this is that the court is already knee-deep in it and can therefore never claim informality has no room in adjudication. As an example, Kanyongolo (2016) cites Chafumbwa v Village Headman Mkanda et al., where the court based its decision to disentitle a claimant to a chieftaincy title under ‘Chewa custom’ on oral evidence of ‘local tradition’. He also cites Mbwana v Kanthiti (Civil Appeal No. 109 of 2011), where the High Court relied on what it had described as ‘propositions of good sense and common justice’ to direct itself on a determination on the distribution of matrimonial property following the dissolution of a customary law marriage (p. 63).
In some cases, the court has legitimised political appointments on matters purely customary. Kanyongolo (2016) demonstrates this by citing Group Village Headman Kakopa et al. v Chilozi et al. (2000–2001, MLR 140), where the court stated that the fact that the claimant had not bothered to ask the Office of the President in the new dispensation (under the 1994 Constitution) for a chieftaincy appointment made in 1979 (under the 1966 Constitution) meant that the claimant had acquiesced to the status quo.
In a litany of decisions, as Kanyologo (2016, p. 64) shows, the courts have, for example, held that,
a constituent has no right to compel his or her Member of Parliament to attend parliamentary proceedings; that a member of a political party can be appointed to the Cabinet without the need for his or her party leadership to be consulted; that a Member of Parliament may resign from the political party of which he or she was a member at the time of elections and declare himself or herself to be independent and not lose his or her seat in Parliament; and that the President may determine what constitutes ‘consultation’ with leaders of political parties represented in the National Assembly for purposes of appointing members of the Electoral Commission.
In some examples, courts have legitimised informal institutions at the expense of the rule of law yet in other cases, they have constrained acts which would pass as normal under customary value, for example, on matters to do with corruption and neo-patrimonialism and clientelism. In latter cases, the courts have relied on the supremacy of the Constitution in that customary law can never override it though it can merely limit the constitutional rights (Kanyongolo, 2016, citing Kamphoni v Kamphoni [Matrimonial Cause No. 7 of 2012]).
The judiciary is also said to have constrained the legitimation of informal frameworks in some cases through restricting the freedom of some institutions to regulate themselves (Kanyongolo, 2016, p. 65). Thus, in Nseula v The Attorney General ([1997] 2 MLR 294), the Supreme Court of Appeal held that courts have the power to intervene in Parliament’s regulation of its proceedings if the regulation involves interpretation of the Constitution. As for the High Court, State v Speaker of the National Assembly et al., ex parte Nangwale (Miscellaneous Civil Case No. 1 of 2005), courts could override the principle of self-regulation of Parliament to enforce the constitutionality of parliamentary decisions and actions.
Current state of Judicialisation of politics in Malawi
This section seeks to demonstrate that what the courts in Malawi have done over the years has often been moderate encroachment which should not be equated to judicialisation of pure-politics in the honest sense of the word. However, the discussion shows that judicialisation of pure-politics has now reached pandemic levels, in some cases, threatening public policy and public administration, rendering inept all efforts towards quality and efficient public service delivery.
In Malawi, during the period of transition to democracy following the Referendum in June 1993, the role the judiciary had played during the one-party era had not been inquired at all. Perhaps it is because some authors have argued that during the First Republic, the judiciary in Malawi had been marginalised (Gloppen & Kanyongolo, 2007). Despite this, it is common knowledge that judicial officers were soon given a new honour in the new dispensation as the greater part of the responsibility to re-organise Malawi’s constitutionality was trusted to their hands. Whether this was right or not is not the subject of this discussion, but the truth is that by sparing the judiciary from facing important questions, the nation had set itself upon a wrong path right from the beginning. In the words of Nyanjong and Dudley (2016) citing Yusuf (2010), “part of the transitional justice process can include measures to hold the judiciary accountable for its role of the judiciary in the perpetuation of the authoritarian past” (p. 13).
At the re-birth of democracy, therefore, judicial officers saw the need to quickly realigned themselves with the expectation of the new order and so executed their duties in a manner that eventually ensured a delicate balance between the need to defend and respect human rights, and the necessity to allow public administration to tick so as to enable the public sector to better serve Malawians. Evidence of judicialisation of politics in Malawi in the early 1990s is therefore, in my opinion, moderate; perhaps that is the reason our democracy has always evolved, staggeringly though.
In this discussion, I perceive judicialisation as the hyper-activism that overreaches in that courts begin to believe that every question, including political questions and decisions on health, and other facets at the heart of public interest, should be turned into justiciable cases. In short, I do not see mere involvement of judicial officers in resolving political questions as judicialisation of politics, because the Constitution provides for it. In this instance, there is no judicialisation of mega-politics in the Lunguzi case (Miscellaneous Application No. 55 of 1994), for example.
In the Lunguzi case (Miscellaneous Application No. 55 of 1994), the Court did fault the President for dismissing the Inspector General, Mac William Lunguzi without following proper procedures, for example, for not giving Mr Lunguzi the opportunity to explain himself, but the Judge had assumed restraint in the manner he had handled it. What the Judge said in his ruling demonstrates a cognizance to balance our courts exercised in the early days of our democracy:
I now come to remedies. As for paragraphs (a) and (b), I declare that the first: plaintiff's removal from the office of Inspector General of Police was unlawful and unconstitutional in that sections 43 and 154 of the Constitution were not complied with. At paragraph (c) I am being called upon to declare that the first plaintiff be reinstated. In the case of Chief Constable of the North Wales Police v. Evans the court refused to grant an order of mandamus to reinstate the appellant because in practice such an order would border on usurpation of the powers of the Chief Constable, which was to be avoided. It is for that very reason that I refuse to order reinstatement.
Perhaps this presents itself as a typical example of what Kanyongolo (2016) has explained over how that courts sometimes have legitimised informal acts by political authorities. I prefer to look at it differently―judicialisation from below. Thus, here I see a Judge walking the moderate rope rather than the hyper-active one. Of course, there were other cases with a measure of hyper-activism necessary at the time; a case in point is the Press Trust Case (Civil Cause No. 2074 of 1995) at the trial court.
Briefly, the facts are that in November, 1995, the Members of Parliament passed Press Trust Reconstruction Bill. The Bill had been debated and passed without the opposition Malawi Congress Party who had walked out of the House because the House was using short-cuts. The President assented to it, making it an Act of Parliament—the Press Trust Reconstruction Act―in spite of applications to the High Court for an injunction to stop him from assenting to this Bill. The plaintiffs had therefore wanted it declared null and void for being unconstitutional in substance and for being passed in contravention of the Constitution.
Judge Dunstain Mwaungulu declared the Act (the whole law, that is) null and void, observing: “The Press Trust Reconstruction Act is, therefore in contravention of the Constitution both in terms of the way it passed through the National Assembly … [and in terms of] the principles which the Constitution stands for. I declare the Press Trust Reconstruction Act null and void.”
Judge Mwaungulu, however, confessed that there was nothing like interfering with the sovereignty of Parliament in making of this declaration, arguing that the Constitution gives power to this Court to do so (section 11 (3)). For him, the case was “still open to Parliament to pass another law which abides with procedure of the fundamental law and gives credence to the constitutional principles just mentioned.” He cited the practice in the UK where Courts can never invalidate an Act of Parliament but can remit it (back) for the Legislature to pass it properly.
My understanding of what Judge Mwaungulu did, striking down the Act, is that he had not targeted the Act per se, but the procedure, which eventually made it null and void. I would not pass what Judge Mwaungulu did here for judicialisation of mega-politics. In fact, he made it clear he was not trying to interfere with sovereignty of Parliament. I think acts which judicial officers carry out with the object to serve public interest or democracy ought to be categorised properly as honourable. In my opinion, these are within the ambit of their duties.
Kanyongolo (2016) has argued that there was an element of judicial activism when the MSCA dug out the ‘doctrine of necessity’ (see The Attorney General v Malawi Congress Party, Civil Appeal No. 22 of 1996) to dismiss the appellants’ argument that, for as long as their boycott of proceedings of the National Assembly subsisted, Parliament could not pass any legislation because it was inquorate. For the court, upholding it would result in legislative paralysis. Kanyongolo has cited Chirwa (2007) as arguing that the logic of this decision was difficult to justify on the basis of precedents and judicial interpretive methodology. This could be true but when India, a Commonwealth democracy, had come before a similar dilemma, the Supreme Court there did what, under normal circumstance, would be considered inconceivable (in the 1975 Indira Gandhi v Raj Narain case). According to Bhushan (2017), this case was a landmark case, a watershed moment in the constitutional, legal and political history of India because, among others, “it was the first time in independent India’s history that a Prime Minister’s election was set aside [that June 12, 1975]” (p. 9). However, a few months later, following a state of emergency, the Supreme Court came to her rescue, endorsing pieces of legislation that exonerated Mrs Gandhi retrospectively.
In the United States, it took the Supreme Court there to end the 36-day drama, thereby ending the deadlock in Bush v Gore (2000). The two acts, in India and the US were necessary because they were a last-ditch attempt to serve democracy. As the last hope of a common man, courts should at times take those radical steps though this must never become a custom.
Again, an important element to consider in this discussion is whether the judiciary’s involvement in informal mechanism to settle matters constitutes judicial activism. In my opinion, it does not at all; courts, especially constitutional courts, are expected to serve these functions. In fact, legal theorists have tended to describe constitutional courts based on five characters. In other words, any constitutional court plays one or more of the following five functions―also known as characters of constitutional courts: (1) the veto-force, (2) the guardian (of the constitution), (3) the public-reasoner, (4) the institutional interlocutor, and (5) and the deliberator (Hübner Mendes, 2013, p. 1).
According to Hübner Mendes (2013) when a constitutional court uses the veto-force, it uses its counterveiling force to counterweigh the decisions of the executive and the legislature. In this way, a constitutional court checks against abuse of power, that is, against arbitrariness and tyranny. Perceived thus, a constitutional court dissects acts (done) by the executive and the legislature to ensure they are constitutionally valid and effective. This could never make judicial officers hyper-activists; this is what the Constitution has called them to do―exerting checks and balances to ensure their decisions align with section 5 of the Constitution.
Hübner Mendes (2013) also writes that constitutional courts play the guardians of the constitution when they look at content of a piece of legislation to ensure its conformity to the Agreement of the People, that is, the Constitution. Hübner Mendes observes that this role, guardian of the constitution, that is, differs from that of courts as a veto-player. In the former, a constitutional court is a neutral, disinterested technocrat sifting through content for conformity with the Constitution or the will of the Founders of the Constitution. When a constitutional court uses the veto-force, it mostly operates from the principle of separation of powers. In short, constitutional courts play the guardian when they are characterised as bouche de la loi, or simply mouthpiece of the law.
Constitutional courts are also described as “chief public reasoners of democracy” or simply “forums of principle” because they are assumed to take the most democratic approach when arriving at their decisions. Take it this way: they are assumed to engage a qualitatively unique type of reasoning to arrive at decisions. In the words of Hübner Mendes (2013), “This theoretical stripe claims that judicial review enables democracies to convey a principled political discourse on the basis of which the dignity and force of the constitution are founded … rights are exercised and protected within a ‘culture of justification’” (p. 3).
The fourth character―constitutional courts as the institutional interlocutor―presents constitutional courts as a public square where the institution of court will take into account the people’s voice on an issue. According to Hübner Mendes (2013), this character rejects the notion that the constitutional court is the last word. Hübner Mendes (2013) describes the notion that constitutional courts constitute the last word as both empirically inaccurate and normatively unattractive: “inaccurate because such an approach would miss the broader picture of an unending interaction over time; unattractive because rather than a monological supremacist, the court should work as a dialogical partner that challenges the other branches to respond to the qualified reasons it presents” (p. 3). In this way, a constitutional court can never dismiss public opinion. Above all, its verdict can never be the answer because the discourse with the public is on-going. Perhaps this would justify the need for the people to analyse decisions of such courts for some perfection.
The last character―constitutional courts as a deliberator―perceives judges as a superior club of intelligence in which individual judges tap from each other for a superior, well-reasoned verdict. In this way, argues Hübner Mendes (2013), besides tapping from the society, and various authorities, judges also tap from each other for a robust decision.
Tarr (2010) has also proffered an explanation that seems to align with that by Hübner Mendes (2013). According to Tarr, by the nature of what judges do, they often find themselves placed in at least one of the five policy-making positions or simply five types of judicial policymaking, namely constitutional policymaking; remedial policymaking; statutory interpretation; oversight of administrative activity; common law policymaking; and cumulative policy making (p. 258).
On constitutional policymaking, Tarr (2010) presents (as a good example) judicial review when courts determine whether a particular governmental action is consistent with constitutional requirements. As for remedial policymaking, Tarr writes that judges establish and implement requirements to eliminate constitutional violations or meet constitutional requirements (p. 257). Under statutory interpretation, they interpret and apply legislative enactments. Oversight of administrative activity involves “review of administrative activity to ensure that it is consistent with constitutional, statutory, or agency requirements” (p. 257).
There are occasions when there is absence of legislation or administrative law. Tarr (2010) writes that on such occasions, the judges engage common law policymaking. Lastly, on cumulative policymaking, Tarr writes that this happens when judges develop policies through use of discretion in finding answers to a large number of cases. In short, with time, certainty develops on an issue.
What all this suggests is that, what the judiciary often does falls within their mandate as constitutions provide. Thus, when they work to assert political rights, they are doing that for the good of the Republic, and this should not be mistaken for judicialisation of pure-politics, because it becomes one when they begin to assume knowledge of everything, even matters that should best be resolved by those well-versed in those areas―professionals and public policy analysts. This is the reason I prefer looking at this issue from whether it is their interests they are serving or that of the greater community. If, even in great controversies, the motive is to salvage public interest, issues of judicialisation of mega-politics must never arise. But where it is obvious a judicial office is being used merely to increase personal visibility and interests of those in power or the elites, then people must grow afraid.
Effects of judicialisation of mega-politics on public administration and public policy
Chelaru (2017) makes an interesting observation on how judicialisation of mega-politics affects public administration or simply the delivery of public goods and services. Chelaru, citing Vedinas (2014) writes that the content of the functions and duties conferred on a government is determined by its executive nature (p. 31). For the reason, in countries where clientelism or neo-partimonialism is rife, where the executive pays the piper and everyone dances to his or her tune, governments become discretionary in the acts they adopt. It should be mentioned that, under normal circumstances, governments are not supposed to be discretionary in the acts they adopt because what they do or adopt must be subjected to control activity (Chelaru, p. 33). Chelaru adds that any control activity involves a reference to a system of values and standards whose main source is law. When a government adopts acts based on this system, it serves the people better. In this way, public administration is said to be controlled. On the other hand, when public administration is at the mercy of neo-patrimonialism and clientelism, decisions favour those who pay the piper and law is merely used as a smoke screen to disguise the motive. The result is that public administration turns itself into machinery for oppression and for dispensing favours. What all this means is that in a neo-patrimonial system, hyper-activism is often triggered to serve the one who pays the piper. Judges, therefore, use informalism to feed this system of neo-patrimonialism.
According to Atter (2006), judicialisation of politics was cited in 2003 by the Norwegian Power Commission as one of the reasons to explain why democracy was disintegrating in the country. Atter writes that the Commission revealed that the Storting, their parliament, was losing authority owing to, among others, “the way political decision-making is increasingly undertaken by the courts or other legal institutions” (p. 246).
According to Adam (2016), the effect of judicialisation of politics has been that some have queried the political relevance of litigation and the relationship between courts and governments. This is because courts are now making decisions on every question, literally, every question so much so that judges have become political players influencing every facet of government much more than their traditional role would allow them (Dressel, 2012). However, the extent to which judicialisation of mega-politics affects policy-making is contested. Hevron (2018), for example, has cited Gash (2015) and Keck (2014), as arguing that law and courts constitute an important policy-making outlet. Hevron has also cited other scholars, for example, Bork (1997), as contending use of courts and law in the policy-making process as undemocratic.
One effect of judicialisation of pure-politics has been its tendency to emphasise less the concept of political solutions for political problems yet it is common knowledge that there are times when political problems seriously require political solutions. In Mozambique, for example, following their independence, the government had an opportunity to punish the collaborators or comprometidos—those who had sided with the colonial Portuguese Government in the liberation war in the country. However, Mozambique set up “truth-seeking meetings from 1975 to 1982 to reflect a belief in the processes of uncovering evidence and enabling past actions to be brought into the open, to be discussed and those suspected of perpetrating actions of violence and betrayal to be recognised and publicly punished” (Meneses, 2017, p. 161).
The discussion in Meneses (2017) demonstrates that there are times when a people, guided by the conscience of religious organisations must take a different path to peace—political solutions for political problems. In Mozambique, they followed this less trodden route, one often abhorred by the West yet one Africa has generously applied upon them as far as the question of colonialism is concerned. Meneses (2017) describes colonialism as nothing but a crime, asserting, “colonialism is a crime against humanity … [because] while defying the right to self-determination, meant a larger process of subjugation that included the use of death, disappearance, torture, political exclusion, incarceration, and other forms of terror” (p. 157).
Judicialisation of mega-politics has also been used as an instrument to capture other institutions. In most countries, this has been the case with the media or civil society organisations in general. Regulatory capture is often the form of capture used. According to Veltrop and de Haan (2014) citing the Nobel laureate Stigler (1971), the notion of regulatory capture refers to a state in which those groups that ought to be regulated gain control over the regulatory process. It becomes difficult for courts to stop this because it often happens within the confines of the law. However, perhaps using informal approaches, judicialisation from below, can intervene after reading neo-patrimonial motives in certain decisions.
Tai (2015) provides three forms of regulatory capture: collusive capture, combative capture, and cultural capture. Citing Stigler (1971) and Laffont and Tirole (1991), Tai writes of collusive capture as a form of capture that involves an interest group and a decision-maker exchanging more favourable regulations for personal or political benefits. In combative capture, an interest group or a powerful and concentrated industry applies severe pressure to bend honest policy-makers towards making decisions that favour the former (Tai, 2015 citing Dal Bó and Di Tella, 2003). A good example would be acts, for example, smear campaigns, media attack, by a civil society that is married to a certain political party or ideology in putting pressure on the legislators to pass a bill that favours the interests of the former or its political buddy at the expense of the people.
Lastly, cultural capture entails socialising the regulatory agency through means and interactions that make the regulator eventually begin to share the views of the very firms or bodies they should be regulating. In Malawi, some civil society organisations are all smiles after being promised to be incorporated in some parastatals. Not long ago, a suggestion was floated so that the country’s major influential civil society grouping, the Public Affairs Committee, should be turned into a constitutional body. What acts like these do is turn the two parties into one, as they now see using the same lens. In the case of judicialisation of mega-politics, judicial officers would appear to favour positions of those with whom they share interests, leading to selective justice or weird verdicts.
Whatever capture, the consequences or effects on democracy, public policy and public administration are always the same: “erosion of democratic governance, social cohesion, and equal opportunities for all, as well as the decline of trust in democracy itself” (OECD, 2016, p. 3). Besides, it can also lead to perpetration of injustice and a breed of a punitive culture. In such a culture, the narrative of those who are supposed to be supervised or monitored gains credibility even where they could misrepresent facts for purely self-interest ends. Since the architecture appears in the livery of law, the world goes silent until things reach crisis levels. Public policy therefore stands to lose in such a setting.
If capture is a problem elsewhere, it is a pandemic in African governments owing to neo-patrimonialism. Perhaps, this justifies why some scholars have advocated a limited role in regulation by governments. Stigler (1971), for example, has advocated removal of state controls and regulations. Perhaps this would not make sense to analysts in the West where “state regulation is captured less often by powerful interests than many casual observers believe” (Teske, 2004, p. 4).
Perhaps those who have advocated use of some international experts in supreme audit institutions have based their propositions on such arguments, that is, limited role in regulation by government. Perhaps the idea is that an international expert, for example, in the Anti-Corruption Bureau, would hardly toe the neo-patrimonial line and therefore execute his or her duties in the independence sense of the word. Of course, these things have been welcomed with scorn, perhaps because it is a cost a nation can avoid. But what cost when the greater part of the funding for these institutions is from the donors themselves?
Debate on judicialisation of pure-politics should never be mistaken for attempts to restrict judicial officers, for it is merely an endeavour to provoke more discussion to refine ourselves as a country. Judicial independence should be upheld at all costs, of course, put to check by honest men and women with a desire to consolidate Malawi’s democratisation. It should be pointed out that even in national leadership, it makes little sense over-restricting the leadership. In the words of Gebremariam (2017, p. 97), “a nation that constrains their leader too much will make it impossible to securing and exercise the relative autonomy that the developmental state demands.”
Conclusion
This discussion has shed some light on the question of judicialisation of mega-politics in Malawi. It has demonstrated that courts in Malawi have seen their powers increase owing to a number of reasons, most notably the adoption of the Constitution of the Republic of Malawi which carries a comprehensive Bill of Rights. It has, however, shown that judicialisation in the early part of our Second Republic was largely moderate, and that it was in tandem with the concept of judicialisation from below. It has also been shown that the situation has completely changed now, the terrain heavily charged, as every question now falls at the mercy of judicial officers. The implication on quality delivery of public service has been documented―judicialisation of mega-politics has sent public policy and public administration into a terrible spin. Two events―the advent of the Covid-19 pandemic, and the outcome of the 2019 Presidential Election petition―have been shown to have arguably proffered impetus for increased judicialisation of mega-politics. An important point one should take home here is that, it is not wrong for courts in this country to exercise increased powers, and insistence that politics or resolution thereof should fall outside the ambit of what is examinable by courts is conspicuously misplaced; what is crucial is that, when called to duty in those circumstances, judicial officers must ensure that their position is largely one of mediator, a prudent and ardent seeker of true democratisation, conscious to the fact that political questions are best resolved through dialogue―political questions for political solutions. This means that courts should only come in where administrative and political decisions immoderately infringe upon the people’s rights. Thus, all actions which threaten democracy ought to be responded to with equal measure of force regardless of whether this will constitute judicialisation of pure-politics or not. In the end, one important suggestion to enhance quality in our institutions is the creation or strengthening of political institutions to bring in a culture of sanity, certainty, and direction.
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