Federalism and the Courts in Africa

Design and Impact in Comparative Perspective

Yonatan T. Fessha, Karl Kössler, Yonatan T. Fessha, Karl Kössler

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000042245
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume examines the design and impact of courts in African federal systems from a comparative perspective.

Recent developments indicate that the previously stymied idea of federalism is now being revived in the constitutional arrangements of several African countries. A number of them jumped on the bandwagon of federalism in the early 1990s because it came to be seen as a means to facilitate development, to counter the concentration of power in a single governmental actor and to manage communal tensions. An important part of the move towards federalism is the establishment of courts that are empowered to umpire intergovernmental disputes. This edited volume brings together contributions that first discuss questions of design by focusing, in particular, on the organization of the judiciary and the appointment of judges in African federal systems. They then examine whether courts have had a rather centralizing or decentralizing impact on the operation of African federal systems.

The book will be of interest to researchers and policy-makers in the areas of comparative constitutional law and comparative politics.

1
Judicial federalism in comparative perspective

Erin F. Delaney*

* For their helpful comments, I would like to thank Peter DiCola, Travis Lenkner and the book’s editors, Yonatan T. Fessha and Karl Kössler. Kendra Doty and Kathryn Harvey provided excellent research assistance.

1. Introduction

By some calculations, roughly 40 percent of the world’s population lives under a federal system of government. And as befits an organizing principle so expansive and important to people’s lives, much scholarly attention has been paid to federalism and federal polities, from theory to design to operation. Institutional design for power-sharing arrangements – whether federal, confederal, consociational, corporatist or other – has been a key area of academic exploration, as theorists and practitioners have sought to defuse tensions and even violence by structuring and channeling politics. The ‘federal revolution sweeping the world’¹ has led to more than 500 different specifications and types of federalism in the literature,² as well as myriad institutional forms, with many new theories and institutional proposals under development.

1 Daniel Elazar quoted G Smith, Federalism: The Multiethnic Challenge (London, Longman, 1995) 1.

2 For an early attempt to categorize these many theories, see WH Stewart, Concepts of Federalism (Lanham, University Press of America, 1984).

The immediate demands of political power-sharing, particularly in societies divided along primordial ties, necessarily focus attention on key political institutions and the structures that support them: legislatures and executives at both the central and constituent unit (state, province, Land, etc.) levels and the organization and regulation of political parties and elections. Far less thought is given to judicial federalism – a federal system’s judicial architecture and its operation, including its apex court or courts, lower courts under central control or autonomous courts in constituent units and the ways in which these many institutions connect or interact.³

3 In both the text of and the debates over the Constitution of the United States, the first modern federation, the organization of the judiciary received far less attention than the structure and powers of the legislature and executive branches. Article III is a paltry 51 lines compared to 127 lines for the Executive and 303 for Congress. See ES Bates, The Story of the Supreme Court (New York, The Bobbs-Merrill Co., 1938) 30. There was no consensus in the convention about whether to create new federal courts or to use the existing state courts as inferior courts. The delegates were happy to defer that decision to Congress and did not see it as necessary to constitutionalize the broader judicial architecture.

Although often overlooked or given only cursory attention, judicial federalism is of critical importance to the functioning of a federal system. The role of apex courts in constitutional development is widely seen as a central aspect of modern constitutionalism, and in a federal system, courts participate in structuring and mediating the very societal conflicts that contributed to the initial desire for power-sharing. Early commentators understood that judicial arbiters would carry great weight in systems structured to divide or apportion power. An anti-federalist critic of the 1787 US Constitution, Robert Yates, writing under the pseudonym Brutus, focused his concern on the judiciary, reminding his readers that the ‘real effect of this system of government, will be brought home to the feelings of the people, through the medium of judicial power.’⁴

4 ‘Essays of Brutus’ in HJ Storing (ed), The Anti-Federalist (essays first published 1788, Chicago, University of Chicago Press, 1985) 163.

Brutus recognized what federal theorists would later develop as essential to the federal project: The nature of a federal compact and the need to secure divided power among different levels of government would require an ‘ultimate arbiter.’ The extension of this expectation has been an assumption that such an arbiter would be an apex court.⁵ A. V. Dicey, the noted British constitutionalist, thus described federalism as legalism.⁶ But beyond this generalized statement, design theorists provide little insight into how that apex court – or the broader judicial architecture supporting it – should be constructed.

5 See, for example, KC Wheare, Federal Government (Oxford, Oxford University Press, 1963) 58f; I Duchacek, Comparative Federalism: The Territorial Dimension of Politics (New York, Holt, Reinhart and Winston, 1970) 207f; PJ Proudhon, The Principle of Federation by P.-J. Proudhon (first published 1863, Richard Vernon tr, Toronto, University of Toronto Press, 1979) 41.

6 AV Dicey, Introduction to the Study of the Law of the Constitution (8th edn, London, Macmillan and Co., 1915) 28.

Scholars struggle to define federalism and debate what should count as a federation or federal system. Identifying federal judicial systems mirrors these complications. In some examples, a system with elements of shared or divided political power might have a unified court system (e.g., South Africa), or a unified political system might have separate court systems (e.g., Scottish courts in the pre-devolution United Kingdom). And generalizing about federal judicial systems is difficult: their apex courts are themselves varied in form and function, and their underlying judicial architectures are even more diverse.

In order to provide broad engagement with various design questions and open research areas, this chapter takes a capacious view of judicial federalism. It will first address the design and function of apex courts, and then outline the complicated issues raised by the rest of the judicial system – whether to constitute lower federal courts or separate courts in constituent units, or both; how those courts should interact; and the embedded challenges to judicial and political legitimacy.

2. Apex courts

Given the theoretical expectation that a federal compact will require some type of arbiter and that courts generally are relied upon to interpret and enforce contractual rules, it is perhaps unsurprising that an apex court is the institution most often selected to fulfill that role. Although the occasional scholar is willing to leave ambiguous the ultimate-arbiter designation or hypothesizes a political body instead of a court,⁷ most actual federal systems use the judiciary to mediate the challenges of federalism and provide constitutional review.⁸ Thus apex courts – both their design and function – have received the most sustained scholarly attention.

7 WS Livingston, Federalism and Constitutional Change (London, Oxford University Press, 1956) 10f; A Stone, ‘Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law’ (2010) 60 University of Toronto Law Journal 109, 133.

8 In Switzerland, final arbiter status on the constitutionality of federal law is given to the people through referendums. Federal Constitution of the Swiss Federation: 18 April 1999, Articles 189, 141. And in Ethiopia, the 1995 Constitution allocates the responsibility of constitutional interpretation and judicial review to the upper chamber of the legislature, the House of Federation. See KI Vibhute, ‘Non-Judicial Review in Ethiopia: Constitutional Paradigm, Premise and Precinct’ (2014) 22 African Journal of International and Comparative Law 12.

2.1 Design

Designing an apex court requires a number of complicated determinations, the resolutions of which will be deeply contextualized within any individual federal system. As D. J. Kriek has written, ‘given the wide variety of and the difference between federations, it is difficult to generalize about the role of courts and other arbitrators within federations.’⁹ Some broad outlines are nevertheless useful: The process of creating an apex court will demand decisions about jurisdictional allocations and the role of the federal compact or constitution and may force a reckoning about the nature of the federal system and its cleavages (whether geographic, ethnic, religious, etc.).

9 DJ Kriek (ed), Federalism: The Solution? (Pretoria, HSRC Publishers, 1992) 84.

A key political issue in designing an apex court is the challenge of ensuring judicial legitimacy. Legitimacy is multifaceted, including both legal legitimacy, developed through reason-giving, and institutional or sociological legitimacy, derived from the public’s willingness to comply with and the government’s willingness to enforce judicial decisions.¹⁰ This latter legitimacy – though largely developed over time by a court’s actions and operations – is constructed, in part, at the design stage. As Dan Brinks and Abby Blass have argued, the nature, or ‘DNA,’ of a court’s power is forged by the scope of its authority and the set of ex ante or ex post controls put on the court.¹¹ It is in crafting these details that the underlying fissures or fault lines of the federal system may rise to the surface.

10 EF Delaney, ‘Analyzing Avoidance: Judicial Strategy in Comparative Perspective’ (2016) 66 Duke Law Journal 1.

11 DM Brinks and A Blass, The DNA of Constitutional Justice in Latin America (Cambridge, Cambridge University Press, 2018).

When thinking about the scope of an apex court’s authority, designers will confront big-picture structural questions about the court’s jurisdiction. Will the court act with both constitutional and general jurisdiction, or will it be a specialized constitutional court in the Kelsenian model?¹² This overarching question may be resolved through constitutional provision, but extensive, fine-grained de...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Table of cases
• Notes on editors and contributors
• Acknowledgments
• Introduction
• 1 Judicial federalism in comparative perspective
• 2 Federalism and the courts in Nigeria
• 3 Giving ‘shape and texture’ to a federal system? Ethiopia’s courts and its unusual umpire
• 4 The courts and the provinces in South Africa
• 5 The courts and local governments in South Africa
• 6 The courts and devolution: the Kenyan experience
• Comparative observations
• Index