We live in an era of international courts; since the explosion in international, regional and sub-regional organizations, the world has seen a number of these organizations create judicial organs to clarify treaty law and thus resolve any disputes between the parties to treaties and any disputes between private actors and their governments.
Africa came late to creating regional sub-regional courts – this being explained by the suspicion of domestic judges, and the belief that international relations were the preserve of the executive arm. However it is interesting to note that Africa’s sub-regional courts are the focus of a burgeoning scholarship with a particular stress on how they fit into the matrix of treaties, protocols and domestic politics of the states that have created them. Thus the paper by Alter, Gaathi and Helfer (AGH) – “Backlash against International Courts in West, East and Southern Africa: Causes and Consequences” – is a welcome addition to understanding Africa’s transnational judicialism.
However as exposed by AGH not all is plain sailing with attempts by member states of sub-regional organizations to undermine, if not dismember, the judicial organs they have created. The explanation by AGH is thorough; disassembling the intricate moves, legal, organizational and diplomatic, to gut courts in ECOWAS, SADC and the EAC. AGH focus on moves by Gambia, Zimbabwe and Kenya. They seek to explain why Gambia failed, Zimbabwe succeed and Kenya found itself somewhere in between success and failure. AGH provide a very sound analysis and I am of the view that their work carries out important spadework as dissecting the “backlash” against transnational courts is essential for those scholars, activists and policy-makers with an eye on deeper integration in Africa.
However, there is the need for further exploration to enable the understanding of the progress or otherwise, of transnational judicialism. Thus I suggest observers should widen the scope of the analysis set in motion by AGH.
Legal transplants are difficult and in my opinion, I think the most difficult is the concept of supranationalism and the role courts play in this process. In this vein, and in trying to explain the failure of attempts at deeper integration in Africa, I make the claim that European supranationalism, (which is the model for African organizations) is the consequence of a long historical process that has not played out in Africa. Supranationalism has a much longer history in Europe, becoming path dependent long before the idea emerged and began to develop in Africa. Law tends to be the product of norms, traditions and conventions. While some law can come from “above”, inserted into a society on the back of rationalism and/or concepts of natural law with little regard for history and custom, the so-called Historical School of Law sees law as a living process, grounded in the consciousness or the spirit of a people as articulated by Savigny (1831). Scholars such as Tore Nedrebo (2010); van Zanden (2007); Svedberg (1994); and Allot (1991) have analyzed historical processes in the European unification process, stressing, especially in Nodrebo and van Zanden’s case, how deep the roots of European unification, and its supranational derivative, are. When your legal system is not rooted in very fertile soil, uprooting it, ignoring it or deforming it at will is fairly easy. This is the fate, of two of the three courts that AGH have studied.
Erika de Wet (2013) has argued the point that African governments sometimes sign international treaties without fully digesting the import of the obligations that arise. I have tried to add to this position of hers (2016) in my exploration of African unification and why it remains stagnant, notwithstanding daily exhortations, and regular calls for an embrace of “union government” for Africa. AGH’s paper points out the reservations some African governments have about their new-found enthusiasm for transnational adjudication
AGH have done excellent spadework for inquiry into the nature and tendency of African organizations: more work needs to be done to reinforce their effort.