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    The role of courts in preserving democratic rights and building a democratic system

    Democracy is an ideal political system in any country. Western world, particularly the United States and Great Britain, acts as role models of democracy for other states and nations. Democratic countries have many unique features and local characteristics. One feature that unites them all is their unquestionable commitment to a strong and independent judiciary. Democracy is impossible without independent courts, which must be or at least aspire to be objective, unbiased, politically impartial, and loyal to the constitution and the public interest at large. It means that courts, along with other political, legislative and governance institutions, work to accomplish a common mission, which is achieving and maintaining high levels of citizen well-being. In a democratic society, courts fulfill a variety of functions and are the final interpreters of the laws of the land. On the contrary, non-democratic societies typically lack an effective independent judiciary. This is the case in most of African countries where weak courts undermine the prospects of real democratic reforms. African countries should assume more proactive role in reforming and redesigning their court systems to create a new space for promoting and preserving democratic ideals.

    It is a common understanding in Western world that courts are instrumental in the provision and protection of democratic rights. Unfortunately, that is not the case in most African countries. A 2017 The Economist article sheds light on the controversial court situation in Zimbabwe and other African countries: “the wheels of justice may turn slowly in Zimbabwe, but in some other parts of the continent they have almost fallen off.” Weak courts are an issue that is plaguing most countries across the continent. Litigants often have to wait for years to have judges solve their problem. A Nigerian businessman complains that he has filed two lawsuits against another businessman; it has been ten years since he took his opponent to the court, and the matter is still unresolved, according to The Economist article. However, even delays with justice are not as tragic as the scope of corruption facing African courts. Bribes can take different forms, including but not limited to money and sex. Ordinary Africans have little hope that courts will manage their legal concerns in a manner that is equally just and fair. The ghost of injustice keeps haunting the African continent, leaving little room for democratization.

    Someone might say that Africa is facing too many issues, and judiciary is not the top priority for people who experience poverty and hunger. Really, the myriad of economic, social and political conflicts in the African continent leave little room for judicial improvements. Yet, the truth is that African countries cannot move forward without strong and independent courts. A strong and independent court system is a foundation of democracy. In a democratic world, courts fulfill a diversity of functions. They promote a vision of justice and fairness in the eyes of citizens. They build citizen confidence that they will always find fairness and relative justice when they need it. Courts protect citizen rights and function as an instrument for legal and judicial oversight. It is the court system that guarantees that laws do not discriminate against the rights of citizens and that these laws are properly applied in practice. Africa can learn its lesson from the developed world in particular from the US and the UK where strong courts have always been a foundation for achieving the most ambitious democratic ideals.

    In both the US and the UK, courts exemplify a potent mechanism for managing democratic processes in society. The basic intent behind the creation of a well-functioning court system in both countries was to protect democracy, according to Andreas Follesdal. Courts in America and the UK are in a position to identify the earliest signs of political tyranny and prevent it. It means that courts stand with citizens, side by side, protecting their rights and monitoring the implementation of democratic processes and opportunities. Quite often, they become a voice of citizen dissent with the decisions and policies adopted by governments. The latter acknowledge and comply with the power of judiciary. Sometimes, courts will have a final say in democratic policymaking, by interpreting laws and offering guidance to implement them in practice.

    Developing countries need strong courts to facilitate their transition to a more stable democratic society. Undoubtedly, even the simplest judicial reform will not be easy for African countries. Resource constraints are omnipresent: in the atmosphere of poverty, African governments may find it difficult to allocate the resources needed to support reforms. However, even if the poorest countries manage to secure enough resources, they will have to make an extra step to change public perceptions of the judicial system. This is what is described as “legal culture”, which in many African countries is associated with pessimism, distrust, and ineffective dispute resolution.

    A judicial reform in African countries will be complex, encompassing changes in all spheres of life beyond courts. It will require educating citizens and creating an understanding about the system of justice. It will also necessitate the provision of education and information that will help citizens enjoy the full advantages of the new system. These changes will create a new image for Africa and a new prospect for democratization across the continent.

    Ed.’s Note: Samuel Alemu is a partner at the ILBSG, LLP. His partner at the ILBSG, LLP, Praveen C. Medikundam, contributed to this article. They are both admitted to the bar associations of New York State, United States Tax Court, and the United States Court of International Trade. Samuel can be reached at [email protected]

    Contributed by  Samuel Alemu

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