Academic journal article Political Research Quarterly

Politics and Judicial Assertiveness in Emerging Democracies: High Court Behavior in Malawi and Zambia

Academic journal article Political Research Quarterly

Politics and Judicial Assertiveness in Emerging Democracies: High Court Behavior in Malawi and Zambia

Article excerpt

Focused on High Court behavior in Malawi and Zambia, this article examines the factors affecting judicial assertiveness vis a vis other power-holders in the state. Drawing from strategic understandings of judicial decisionmaking, the analysis focuses on whether and how political factors shape judicial behavior. The findings lend support for those who have emphasized such factors, in particular by indicating that judicial assertiveness is somewhat dependent on larger political conditions. The findings also suggest that the strategic view can be refined. For one, scholars should more directly consider how political factors interact with judicial preferences to shape decisionmaking. Further, scholars should appreciate how political conditions may encourage judges to embrace positions of political neutrality.

While effective judicial institutions are critical to democratic development in a number of ways, perhaps their most crucial role in new democracies concerns their contribution to horizontal accountability. Especially in contexts where legislatures remain docile and civil society undeveloped, vibrant judiciaries offer a potential antidote to unfettered executive dominance of the political sphere-a condition that has served as a cause of concern for observers of new democracies (O'Donnell 1994; Bratton and van de Walle 1997). For this reason, the emerging role of judiciaries, and, in particular, the factors affecting their behavior vis a vis other branches, represents a central issue for those concerned with the futures of these regimes (Diamond 1999: 111-112).

In recent years, a growing body of research has begun to investigate the behavior of judges in emerging democracies with an eye to discerning the factors and conditions contributing to the emergence of vibrant and assertive judicial institutions. One of the key insights from this research has come from scholars employing "strategic" understandings of judicial behavior. Building from theories advanced in the study of the American judiciary, scholars have indicated that judges make decisions based significantly on the anticipated reactions to those decisions by other institutional and political actors. Under certain conditions, judges can be expected to defer to such actors, while in other instances they are more likely to assert themselves vis a vis other power-holders. One implication is that the behavior and even vibrancy of judicial institutions is conditioned substantially by political factors that inform the strategic calculations of judges.

This article seeks to extend this line of research by applying such strategic understandings of the courts to judicial behavior in two new African democracies, Malawi and Zambia. Both of these countries underwent transitions to democracy in the early 1990s and, in both, judges have played a highly prominent political role by virtue of their deciding cases of substantial national importance. The issue that I examine concerns how we make sense of the patterns of decisionmaking of judges who have been faced with rendering decisions in political cases. Do strategic understandings of judicial behavior provide insight into the dynamics observed in these two countries? And what does this tell us about the prospects for the emergence of assertive judiciaries in contexts such as these?

The findings offer support for existing theories of judicial behavior that emphasize the role of political factors in shaping levels of assertiveness from the courts. The data from both Malawi and Zambia, for instance, suggest that judges read signals from the political environment when rendering decisions in political cases, making judicial assertiveness more likely in some situations than others. Further, different patterns of judicial behavior in Malawi and Zambia can largely be attributed to differences in respective political environments. The deferential behavior of Zambian judges, compared to their Malawian counterparts, reflects a political environment characterized by relatively low levels of power fragmentation and relatively high expectations of executive continuity. …

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