Judicial Independence and Human Rights in Africa

Abstract: 

This cross-sectional study suggests that in many nations in Africa, an independent judiciary does not have a significant impact on a country’s human rights record contrary to the findings of previous work on judicial independence and human rights. While the other usual suspects behave as expected, an independent judiciary actually appears to have a random relationship to states’ human rights behavior. This curious finding suggests that perhaps an independent judiciary is not as crucial to the establishment of democratic norms in transitioning societies as we might expect. Research was conducted to build upon present studies to indicate whether there is an existing relationship between judicial independence and human rights violations. The focus on Africa is to determine what is substantially responsible for controlling the human rights violations that occur within this region.

Table of Contents: 

    Introduction

    Theoretically, a state’s main responsibility is to protect its citizens. Identical to this assumption is the expectation that the state will provide “security both internally and externally for the general good of society” (Henderson 1991, 120). However, many worldwide instances contradict this assumed role of the state. Authoritarian rule in Chile and Guatemala during the 1970’s and 1980’s and the apartheid era in South Africa are well-known examples of regimes that inflicted extensive amounts of terror on citizens. Imprisonment, torture, and killings were committed and tolerated by governmental institutions and rulers.

    An extensive amount of research has been conducted on governmental terror and the abuse of human rights on a global scale (see Poe and Tate, 1994; Henderson, 1991). Many theories have been developed and tested to answer the common question: what are the causal mechanisms of states committing human rights violations? Scholars have conducted studies that attempt to identify and explain the causes of repression in countries throughout the world (Poe and Tate, 1994; Keith, 2002; Henderson, 1991; Mitchell and McCormick, 1988). I will use Poe and Tate’s model of the repression of personal integrity rights such as torture and imprisonment to test this hypothesis.

    Building on a previous study conducted by Keith (2002) and Apodaca (2004), I examine the relationship between judicial independence and human rights violations. I consider the question: Does judicial independence have an impact on the occurrence of, or degree to which, human rights are violated? Analyzing this question helps to expand on present studies to indicate if there is an existing relationship between judicial independence and human rights violations. Apodaca’s findings suggested that there was a significant relationship between the rule of law and human rights violations after doing a cross-national study. This paper will focus on a particular region of African countries.

    Several scholars such as Rios-Figueroa and Stanton, 2009; Gordon and Bruce 2006; and Piana 2010; and Ferejohn 1999 developed studies with a focus on judicial independence. In this study, judicial independence is defined as, “a judge ought to be free to decide the case before her without fear or anticipation of (illegitimate) punishments or rewards” (Ferejohn 1999, 355). In other words, judicial independence is associated with an individual judge’s ability to make adverse decisions in accordance with their beliefs or interpretation of the rule of law. As noted by Piana, “low guarantees of judicial independence may leave judges unprotected from external influences” (2010, 43). The ability to make decisions which might differ from other branches of government or popular régimes without influence could validate a judiciary system’s independence.

    Previous studies have examined the impact of constitutional provisions protecting human rights from human rights violations (Keith 2002), the impact of independent courts on human rights, particularly in Latin America and the former Soviet Union (Skaar 2011; Trochev 2010), as well as judicial accountability (Piana 2010). However, little systematic empirical work has examined the relationship between judicial independence and human rights violations. There is one known scholar who has actually conducted empirical research on judicial independence and its impact on human rights violations (Apodaca 2004).

    Research on Human Rights

    It is generally understood that individuals and groups are bearers of human rights, while the state is the prime organ that can protect and/or violate human rights (Landman 2006, 8). Since there is a considerable amount of disagreement with regard to the value and definition of human rights (Van Dyke 1973), I used Poe and Tate’s definition of human rights, which is protection of one’s personal integrity (Poe and Tate 1994; Henderson 1991). These works, along with others, are the basis for most empirical studies of the causes of human violations. There have been many attempts by scholars to theorize the causes of the systematic violations of individual rights (Henderson, 1991; Poe and Tate, 1994; Keith, 2002).  In particular, there has been considerable attention to political repression, or when the state engages in systematic violations of personal integrity. Political repression involves the state engaging in arbitrary arrests, disappearing people, unlawfully detaining individuals, committing torture, and carrying out political killings (Stohl and Lopez, 1984; De Neufville, 1986; Henderson, 1991). These particular forms of repression are used as intimidation tactics to create a climate of fear throughout a nation (Dallin and Breslauer 1970). Scholars such as Poe and Tate (1994) and Henderson (1991) have investigated the factors that affect the extent of repression. These include: the degree of democracy, the level of economic development, and socioeconomic conditions (Poe and Tate 1994; Black 1999; Henderson 1991).

    To some extent, democracy’s negative relationship with political repression and human rights violations is not particularly surprising (Henderson 1991). Empirically, it has been shown that democracy decreases occurrences of integrity abuse (Poe and Tate 1994). Bollen (1980) and Poe and Tate (1994) define democracy as, “the extent to which the political power of the elite is minimized and that of the non-elite is maximized” (1994, 856 and 1980, 372).  Democracy, therefore, helps check the ability of the elite to repress. Further, as Henderson explains, the level of democracy interacts with the level of economic development, in that “the wealth of a country is shared because the presence of an appreciable degree of democracy permits the general population to insist that new growth be shared” (Henderson 1991). In other words, democracy and wealth help prevent systematic violations of human rights and political repression.

    As others note (Henderson 1991; Poe and Tate 1994), not only do contextual factors (such as democracy and socio-economic factors) affect the extent to which human rights are protected while preventing repression, but institutional and legal factors may also help prevent human rights violations. Protection of the non-elite is provided “through the enumeration of rights, which extends the reach of the rule of law and provides individuals protection from the abuse of government” (Beaty 1994; Rosenthal 1990; Keith 2002, 112), therefore preventing the elite from maximizing their powers. These rights are scripted in a “legally binding document and are supported by constitutional mechanisms such as an independent judiciary” (Keith 2002, 112).  However, as Howard notes, these legally binding documents have often been viewed as “mere window dressings,” rather than providing for “the substantive protection for individual human rights” (Howard 1991, 3; Keith 2002, 112).

    Constitutional Provisions and Judicial Independence

    To examine the potential impact of formal constitutional provisions on human rights and repression, Keith (2002) used a pooled data set that includes observations for 154 nation-states from 1976-1996 to conclude that:

    • The impact of the constitutional promise of the five basic freedoms (speech, assembly, association, religion, and press) and the right to strike on human rights are not substantial;
    • Two of the due process provisions were statistically significant—provisions for public and fair trials. Thus, constitutional protections do matter and are not just “mere parchment barriers” (Keith 2002). This suggests that other formal powers intended to check the power of the political elite (such as constitutional judicial independence) should be examined.

    One formal dimension that may serve to protect human rights is the extent to which a judiciary is independent. Generally, judicial independence is defined as freedom from external influences (Piana 2010; Trochev 2010). These external influences are believed to hinder courts and their structure. Conditions that are believed necessary for developing independent and powerful judiciaries are legitimacy, protected powers, judicial review, and the election appointment process of the courts (Haynie 1999, Trochev 2010). Several studies underlined the importance of judicial independence to the development of democracy. For instance, judicial independence is considered an important aspect of political democracy in a country (Piana 2010).  Judicial independence is seen as helping to “stabilize democratic regimes by providing a need monitoring function for elite coalitions, by coordinating public beliefs about what constitutes a violation of fundamental rules, and by generally lowering the stakes of holding power”(North, Summerhill, and Weingast 2000; Reenock, Staton, and Radean 2009; Rios-Figuero and Staton 2009, 1). Haynie (1999) suggests that in the case of South Africa, judicial independence enshrined in the post-Apartheid 1996 constitution has led to a significant improvement in the way citizens are treated in South Africa. Thus, it appears that increased judicial independence along with certain other factors, in South Africa has contributed to restraining the state, even though the desire for revenge on the part of the post-Apartheid authorities against the former authorities of the Apartheid state may have been quite high.

    Although scholars suggest that judicial independence should be positively related to the protection of human rights, relatively few scholars have conducted cross-national studies that concentrate on judicial independence and its effects on human rights (Apodaca 2004).  Nonetheless, there have been a number of recent studies that examined the development of judicial independence.

    Recently, however, there have been studies that distinguish between de jure and de facto judicial independence (Skaar 2011) or the distinction between what is constitutionally stated and what is actually practiced. As Rios-Figuero and Staton (2009) note, most studies of independence and democracies focused on de jure independence as opposed to de facto independence.  There is a difference between judicial insulation (the formal independence of courts) and judicial independence (independence in practice). They call for “better models which identify how precisely institutions for judicial insulation produce judicial independence” (Rios-Figueroa and Staton 2009, 25). Indeed, “substituting one judicial independence measure for another and considering whether results “hold up” is biased toward finding what they do” (Rios-Figueroa and Staton 2009, 25).

    Some scholars suggest that what may affect the extent to which courts actually behave in independent ways is dependent on the political context. As Trochev (2010) illustrates, public mistrust can weaken the court system. She argues that in the Ukraine, distrust of the courts (largely because of the perceived corruption of judges) has weakened their ability to act in an independent way despite the formal de jure independence of Ukrainian courts. Popular distrust limits their ability to challenge political authority (particularly executive authority), and has hindered the ability of the courts to limit the state.

    Constraining State Power

    Judicial independence is significant with regard to protecting human rights and constraining state power. Unchecked rulers are more likely to engage in violations of human rights than rulers whose power is checked. As Trochev notes, Ukrainian courts have been politically subjugated by other institutional actors and have become dependent, resulting in a weak judicial system. The judicial branch is thus incapable of restraining the state and tolerates any action of the government even if it violates the rights of citizens.

    Judicial Independence as a Form of Deterrence

    Judicial independence allows for courts to freely punish violators of human rights. These punishments are successful in deterring potential violators and making the people more trusting of the judicial branch. Following the end of Apartheid in 1996, South Africa drafted a new constitution, which legitimized the existing legal system.  This constitution gave the judicial branch greater independence and defined human rights in accordance with the universal definition. South African courts, just like other democratic court systems, are liberated from outside manipulation, whether from the military, a popular regime, the executive branch, or the legislative branch.

    Judicial independence and public confidence

    An independent judiciary is an important component of society because it develops a sense of advocacy amongst the people of a state. The preamble of the Bangalore Principles (2002) says that “public confidence is of the utmost importance in a modern democratic society” signifying that the concern, desire, and willingness to enforce the rule of law and uphold the rights of citizens will wear away at an exponential rate. Furthermore, given that the structure of an independent judiciary is conditioned to encourage and maintain the confidence of individuals, it is necessary to check the government so the people will feel comfortable to act through civil procedures. Civil procedures could include lobbying, protest, or forming interest groups or any other kind of civil act that allows citizens to freely advocate if the rights of the people are being threatened. Confidence in the judicial system will have a positive impact “on efforts to establish the rule of law and the ability of courts to fulfill their functions” (Gordon and Bruce 2006 10). This means that the confidence of the public will allow for the court system to be checked by the people and allow for them to convey any noticeable actions that have a negative impact on human rights practices.

    The approach I took focuses on two explanations of how judicial independence relates to human rights. First, Judicial independence allows for the courts to freely punish human rights violators (and hence deter actions that violate rights). Second, judicial independence constrains the arbitrary use of state power reducing the likelihood of state repression. Third, judicial independence acquires the trust of the people by recognizing their concerns. In the next section of the paper, I develop a research design to test the following hypothesis: States whose judiciaries are more independent are less likely to commit/experience human rights violations.

    Research Design

    In the following paragraphs, I will discuss the methods that will test the hypothesized relationship between judicial independence and human rights in African countries. Next, I will conduct the necessary statistical analysis and provide both a substantive and an empirical discussion of the results. Table 1 displays a summary of the complete data set. A cross sectional analysis is conducted. This analysis comprises an OLS regression of human rights in 2008 on the measures of judicial independence in 2006 in thirty-one countries. I anticipate a lagged relationship between independent and dependent variables. For this reason, the independent variables are lagged for two years.

    Personal Integrity Abuse Model

    To follow precedence, human rights will be labeled as the “integrity of the person” (Poe and Tate 1994, Cingranelli and Pasquarello 1985; Henderson 1991, 1993; Mitchell and McCormick 1988; Stohl and Carleton 1985). The abuse of an individual’s personal integrity will be referred to as violations of a person’s human rights. Examples of acts that invade a person’s human rights are torture, imprisonment, and murder committed by the state.

    Those actions (torture, imprisonment, and murder) used to define human rights are not meant to diminish other elements of human rights. Other components that relate to the broader definition that includes economic rights and political rights are still important. On the other hand, the focus of this paper is on what is believed to be the most “egregious and severe crimes against humanity” (Poe and Tate 1994), and judicial independence is a factor that can effectively decrease the number of severe crimes committed within a society.

    The measurement of human rights is a composite of rankings from the Amnesty International Reports and the U.S. State Department. Countries were rated on a five-point ordinal scale for human rights, with measurements of repression ranging from 1 to 5.  A country represented by the number 1, like Guinea-Bissau, signifies that it is “under a secure rule of law” (Gibney, Cornett, and Wood 2011).  A country represented by the number 5 is considered a society filled with terroristic behavior.

    Measurement of Judicial Independence  

    Countries in Africa tend to share a similar background and culture, yet there is considerable variation in the occurrence of human rights violations. The focus on African populations comes from curiosity about the factors that cause such variations. For my research, I developed a sample of 31 African countries. For the measurement of judicial independence, I use the Bertelsmann Transformation Index (BTI), which is measured on an ordinal scale from 1-10 (1 being the lowest and 10 being the highest). The BTI is an international ranking of 125 developing and transitioning countries. This index is a useful source for this project, because its measurement of judicial independence aligns with the way I analyze judicial independence. Bertelsmann categorizes judicial independence as the freedom from external influence, and ranks developing and transitioning countries in accordance with this definition.

    Control Variables

    Scholars have found that democracy decreases human rights violations (Henderson 1991). Referring to Bollen’s definition, democracy is defined as “the extent to which the political power of the elite is minimized” (1980, 372). A country’s standard of living and political participation rate are important factors in discussing how a country protects its citizens’ rights. This justifies the use of democracy and GDP per capita as control variables. I used the Polity2 measure in Polity IV (retrieved at http://www.systemicpeace.org/polity/polity4.htm on September 8, 2011) to control for regime type. It is a common belief that economically balanced countries protect the rights of citizens. To control for the economic well-being of a country, GDP per capita (World Bank 2011) is measured.

    Methodology

    An OLS analysis is conducted, because it is an appropriate method given the measurements of the dependent variable. It is usually recommended to conduct an ordered probit or logit for a dependent variable ranging from 1-5. Instead, I followed the precedent set by Poe and Tate and used regression. The same methodology is used because of the similar measurement of the dependent variable. Due to limitations of data, my empirical research will not be time series. I also limit my analysis to just 31 of 50 African countries. To improve empirical studies on this topic, an advanced systematic measure of judicial independence is needed.

    Results and Analysis

    I argued that the absence of an independent judiciary would increase the likelihood that personal integrity abuses would occur.  As indicated in Table 2, I found no correlation between judicial independence and human rights violations. Instead there was a random distribution between the two variables. Apodaca (2004) discovered a correlation when she conducted a global analysis by focusing on one region or continent. This suggests that there may be a correlation in certain areas, like the United States and Canada, while there may not be in others. Why is there a relationship between the independent variable and the dependent variable through a global analysis, but not during research that focuses on a particular area? Eventually Apodoca answers this question by admitting to having omitted developed countries from her analysis.

    Next, I describe some of the cases that were in line with my expectations and some that contradicted my hypothesis. For instance, Chad has high levels of judicial independence and high scores of human rights violations. Chad’s case challenges my hypothesis concerning judicial independence, yet it supports the predicted relationship between the control variables, democracy, and GDP. It supports the idea that low levels of democracy and low GDP increases the chances of human rights violations.

    In Namibia, I found characteristics opposite to those of Chad. Namibia has a judicial independence ranking of 1 and has an average human rights score of 1.5. This combination is the opposite of what I expected to find. According to the political terror scale, human rights violations do not occur frequently, but there is no evidence that the ultimate causal mechanism is an independent judiciary. An explanation for Namibia’s case, just as for South Africa during the Apartheid era, is international pressure. During the same period as Apartheid, Namibia was being pressured by international sources to “cease all hostile acts by all parties” in the UN plan (U.S. State Department) and to formulate a democratic style of government. In order to maintain diplomatic relationships with other state actors, Namibia had to agree to terms imposed by others. These terms caused democracy levels to rise, which in turn resulted in improved human rights practices. Instead of the predicted connection, Namibia’s evolution demonstrates the relationship of the control variable democracy and human rights. It also brings attention to a persuasive tool such as international pressure that can improve respect for human rights. Namibia’s case allows for one to develop insight regarding how human rights are affected in countries transitioning into democracy. This case does not suggest that judicial independence is completely irrelevant. It simply suggests other forces are more effective in maintaining personal integrity rights.  This indicates that countries transforming into democratic societies may pay little attention to the judicial branch. One explanation might be that an independent judiciary is seen as a final piece of the puzzle to sustaining a democracy that protects citizen’s human rights.

    Free and fair customs may begin a process of democratization that concludes with an independent judiciary. There may also be intervening circumstances that cause countries to focus less on particular government institutions, such as international pressures and diplomacy. Countries that are dependent on the international community for support have to preserve a diplomatic relationship with the supplying country. International pressure can also be a major force when there is a strategic interest in a country. These interests include natural resources, trade, or anything that contributes to countries becoming allies of more powerful states.  When the accessibility of certain resources is at risk due to civil conflict, outside state actors feel the need to intervene to protect their interests. An operational resort sometimes involves pressure or threats, which yields a constructive outcome within government institutions.

    An additional explanation for the lack of correlation is measurement issues. Sample size is a vital component when conducting a data analysis. When the size of the items being measured is too small, it makes it almost impossible for a relationship to be displayed between an independent and dependent variable. As a result of N being low, reaching statistical significance can be quite difficult. The assumption of sample size effects is applicable for any variable. The sample size for this research is a relatively small number in comparison to global analysis research.

    Conclusion

    This study sought to explain the impact judicial independence has on human rights violations in Africa. In this paper, human rights were categorized as personal integrity rights. A cross-sectional analysis was conducted covering a two-year period. A model explaining judicial independence and its effect on human rights was developed and tested in light of data from Amnesty International and the U.S. State Department.

    Based on my findings, the hypothesis presented above was not supported by the evidence. These results are significant because they extend the work of Keith (2002) and Apodaca (2004), but uses different measurements of judicial independence. On the other hand, findings do agree with other literature that regime type and wealth have a positive impact on a country’s human rights record. My results suggest that an independent judiciary does not translate into respect for human rights, at least not in African nations. There are many potential avenues for further research, especially testing the hypothesis above using other measures of judicial independence. Further, expanding the study to include more cases beyond the African nations would be important for understanding whether judicial institutions actually affect human rights behavior of states in transition.

    References

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    • Bangalore Principles of Judicial Conduct. 2002. Retrieved at http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf on September 8, 2011.
    • Beaty, David. 1994. “Human Rights and the Rule of Law.” In David M. Beatty, ed., Human Rights and Judicial Review. Dordrecht: Martinus Nijhoff.
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    Table 1: List of African Countries Included in the Analysis

    1. Algeria
    2. Angola
    3. Benin
    4. Botswana
    5. Burkina Faso
    6. Burundi
    7. Cameroon
    8. Central African Republic
    9. Chad
    10 Congo
    11. Congo Democratic Republic
    12. Djibouti
    13. Egypt
    14 Eritrea
    15 Ethiopia
    16 Ghana
    17 Guinea
    18 Kenya
    19 Liberia
    20 Libya
    21 Madagascar
    22 Malawi
    23 Mali
    24 Mauritania
    25 Mauritius
    26 Morocco
    27 Mozambique
    28 Namibia
    29 Niger
    30 Nigeria
    31 Rwanda

    Table 2: Descriptive Statistics

    Variable N Mean SD Min Max
    HR 2008 40 2.91 .91 1 5
    Judicial Independence
    2006
    30 4.9 2.11 1 9
    Polity 2 36 4.11 3.36 0 10
    GDPpc 38 1891.84 3083.83 121 15

    Table 3: Impact of Judicial Independence on Human Rights

    Dep variable 
    = Hr2008
    Coef Std.Err. T P>|t| 95% Conf. Interval
    JudInd2006 -.0487 .1081 -0.45 0.656 -.272     .174
    Dem2006 -.10001 .0363 -2.76 0.011 -.175    -.025
    GdpPerCap -.0001 .0000 -2.16 0.041 -.000    -4.74
    Cons 3.800 .4477 8.49 0.000 2.87      4.72

    *Number of Observations =    28          
    F(  3,    24) = 9.53       
    Prob > F    =  0.0002    
    R-squared =  0.2440         
    Root MSE   =  .76682

    Table 4. Relationship of Judicial Independence and Human Rights