For the African Union to succeed in its fight against corruption and bad governance, it needs to support the continent’s judiciaries. Chief Justice of South Africa Mogoeng Mogoeng, who is president of the Conference of Constitutional Jurisdictions of Africa, spoke to Carien du Plessis at the recent African Union summit in Addis Ababa.
You were elected president of the Conference of Constitutional Jurisdictions of Africa (CCJA) in April last year. Is that why you attended this summit?
The CCJA signed a memorandum of understanding with the AU Commission about a year or two ago, and that creates the possibility for meaningful engagement between the judiciary of Africa and the AU. I’m here so that I can have a better understanding of the challenges that confront the AU, because our role as the judiciary on the continent is to help in the implementation or enforcement of the AU Charter for Human and People’s Rights with the special emphasis on the entrenchment of constitutional democracies where they exist, the rule of law and good governance.
Judiciaries in Africa must be able to breathe life into this vision of ensuring there is good governance that is free of corruption in Africa. I’m happy to be here, I’ve learnt a lot. We are better positioned to continue to meaningfully shape the judiciaries of Africa and also to define our engagement with the AU.
Is rule of law in Africa moving in the right direction?
Africa is moving in the right direction, but I wish the pace was much faster than it is now.
Remember how many coup d’états we used to have? Remember how entrenched impunity seemed to have been in general in many African countries? The establishment of the AU’s Peace and Security Council seems to have made a lot of difference.
We have had a lot of countries either amending their constitutions or bringing about radical constitutional changes so that the judiciary is properly accommodated.
Namibia amended the constitution so that a strong administrative arm was created for the judiciary. They now have their own administration in much the same way South Africa’s judiciary has its own administration.
Zimbabwe sent officials to South Africa to learn more about our judicial appointment process, and a superficial look at the constitutional amendment they brought about reveals they have mirrored their Judicial Service Commission processes on the South African reality.
We have also seen a number of good developments in Kenya to stamp out corruption and appoint new judges to ensure a credible court system.
I also recently met with a World Bank official about the funding of modernisation in the court system. Tanzania, for example, embarked on a massive project, including judicial training and facilities, and including video links for evidence gathering. So there is a lot of good happening in judiciaries.
However, there is still a lot to be done and progress to be made. One of the issues of great concern to me is gratuitous attacks and even threats of violence, even though they are somewhat sporadic, on judicial officers, and the reality that in some countries you have judges without legal training whatsoever. These are matters to be brought to the AU so that, as they count on the judiciary to contribute meaningfully in uprooting corruption and winning the fight against corruption, they must be alive to the critical challenges that confront the judiciaries on the continent.
Do you think the AU’s theme of “Winning the fight against Corruption” will be effective in fighting the scourge?
It is a step in the right direction. What moved me even more in [Nigerian President] Muhammadu Buhari’s speech was his recognition of the reality that the fight cannot be won unless the judiciary is allowed to carry out its mandate properly, that the broader criminal justice system needs to be involved and that special attention needs to be paid to corruption busting agencies.
In my discussions with the World Bank representative, he said the Bank would be willing to release some money if I can successfully place the role of the judiciary and the need to capacitate those judiciaries that have more serious challenges than others on the agenda of one of the AU Commission’s structures.
The African Court has been mooted as Africa’s answer to the International Criminal Court. Do you think it will work?
In principle it is not a bad idea. Any continent that believes it has the capacity to establish the equivalent of the ICC ought to be encouraged to do that.
Africa has the capacity, the judicial material to serve in the African equivalent of the ICC, but conditions have to be met to make sure that structure functions effectively and efficiently. Those are: is there willpower by all African leaders and governments to ensure that there is a truly independent ICC equivalent on the African continent, and is it well-resourced to deal with what the ICC was established to deal with?
In any event, the Rome Statute encourages courts in the different countries to deal with matters that they deal with, provided that they have the necessary capacities to do so. I don’t know whether Africa is in a position to establish the court on the understanding that all the critical requirements for setting up that court should exist.
Will it help justice in Africa to have judicial representation in a continental body?
The judiciary around the world has been rendered irrelevant and allowed itself to be rendered irrelevant in settling matters of crucial importance.
When the powers of the SADC Tribunal were reviewed and watered down, the judiciary was not consulted. When the African Court was established, the judiciary wasn’t consulted. They were consulted only on the appointments of judges, submitting names to be appointed by politicians. The same applied with the ICC, and it’s not right.
It is important to assert our authority and say hang on, it’s an abnormality for the AU to have a structure for the executive, to have the Pan-African Parliament for the legislature, but to never have a forum with a meaningful say comprising of judges on the continent. In any democracy you have three arms of the state. We allowed ourselves to be reduced to a footnote by not asserting our authority, so we have to begin now.
The AU and everyone seems to think that because the African Court is an organ in the AU, the judiciary is represented. No, there is no connection between the African Court and the judiciaries of Africa, no informal or formal connection. So it’s important that there is a link, without comprising our independence as African judiciaries.
In that way, when the judiciary is threatened, we are then able to say to the AU, put the situation of the judiciary on the agenda, discuss it or find a mechanism on which you can prevail through a particular government to address the issue.
One of the major problems in Africa, and the world, has been not allowing the judiciary to play its role fully. Broadly speaking, democracies that are stable are those that have gone out of their way to strengthen their court systems and to recognise the role of the judiciary, however painful those decisions were.
This interview has been edited for clarity and brevity.
(Main image: Busisiwe Mbatha/Sowetan/Gallo Images/Getty Images)
The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.
