SADC Judges Support Programme
Empowering the Judiciary through Research Support
Judges in Southern Africa are faced with many challenges. Although most Southern African countries have the formal institutional trappings of democracy, including courts with the power of judicial review and de facto judicial independence, these are however frequently undermined. Most Southern African states are characterized by executive dominance and respect for the rule of law is often weak. Some judges work in hostile and unstable political climates and regularly have their independence threatened – recent examples are that of Judge Thomas Masuku in Swaziland who was forced to step down due to comments he made about King Mswati, and Judge Hungwe in Zimbabwe who was persecuted following his release of Beatrice Mtetwa on bail. The judiciary is often marginalized institutionally through things such as budgetary neglect and insecure tenure (such as in Lesotho) and judges are often required to work in tough physical conditions. Courts are under-resourced both in terms of personnel and structurally; court libraries are non-existent or sparsely resourced and judges receive little or no research support when deliberating their judgments.
An empowered and independent judiciary is critical to the rule of law and political and economic development in the region and the provision of strong external support through various means will support judicial institutions and the judges themselves.
The Democratic Governance and Rights Unit (DGRU) in the Department of Public Law at the University of Cape Town has embarked on a project that looks at supporting judges in the SADC region in different ways. This project will use the following means to build a team of judges:
- Establishing regular fora where judges can discuss and debate issues of critical concern in an intellectually safe environment: The recently held “SADC Judges Forum” hosted by the DGRU in October 2013 was attended by 16 judges from around the region. The need for such opportunities was strongly supported by all the judges who attended it. The Judge President of Namibia offered his full support to all the elements of the project that were discussed with the group and offered to host the next meeting.
- Comparative research support:
- The University of Cape Town and Oxford Universities’ “pro bono publico” group: Judge Dingake in Botswana received comparative research support from the Oxford group for a ground-breaking judgment he made in October 2012 on Women’s Rights (the Mmusi vs Ramantele case) and has been very outspoken in how he valued this opportunity. Based on the success of the Oxford University’s work in this field, the University of Cape Town is establishing an African-based group in partnership with the Oxford team. This group will take on comparative research projects presented by judges that concern a human rights or public law issue.
- Internships: Research support will also be offered through three month internships to students from UCT and Oxford to clerk for one of the SADC judges during the vacation period, thus gaining invaluable experience and providing a judge with much needed support.
- Virtual Research Assistants: Additionally, discussions at the October meeting revealed that basic provision of law reports and relevant judgments is also needed. When judges are on circuit they have little access to resources and some judges in general have very limited resources. DGRU will make a team of students (virtual research assistants) available who can respond to email/sms requests from judges, locate relevant resources online or in the UCT law library, and send copies of the documents to the judge via email or fax.
3. Public support: Where needed, through media statements in particular situations where individual judges are threatened or challenged. The Director of the Southern African Litigation Centre indicated that this kind of support is meaningful to individual judges who are in challenging positions- just knowing that they have a team of supporters ‘out there’ is valued.
4. Academic Support: An annual academic support program of 4-6 weeks where one judge can come to the University of Cape Town’s Law faculty and engage in research of his/her choice while being financially and institutionally supported. A program like this could also offer a judge who is facing political or other persecution the space to step back for a while and regroup.
The impacts of this project include:
- Better quality judgments can be produced through the provision of international and comparative research reports;
- Fewer delays in judgment writing though the provision of adequate research support;
- Mentoring of magistrates can be improved through the provision of materials to circuit court judges, which may result in better quality of justice at the magistrates' court level;
- Rule of law in the region is strengthened through the ongoing support of judges; and
- Collegiality and sharing of ideas through annual fora will strengthen the independence of the judiciary in the region.
The main partner for this project is the Oxford University Pro Bono Publico group.
Program Countries:South Africa, Namibia and Malawi
Rule of Law Index Factors: Civil Justice (Factor 7), and Criminal Justice (Factor 8).
Issue Areas: Human Rights, and Judiciary.