BSR: Understanding the role of judges as political actors


I was going to present some reflections on my recent trip to Zimbabwe but events this week prompted me to go into some detail over the role of the judiciary in a political system. In a previous article on the legal and political implications of a High Court judgment, I had argued that it posed an existential threat on the main opposition. In doing so, I devoted much time to the political role and effect of the judgment and less to the legal merits of the decision.

This was deliberate as the purpose of the assessment was to locate the judgment within the political dynamics and the role of judges as political actors in our evolving political system. In this piece, I seek to develop this theme further, that of the judiciary as a political institution and of judges as political actors whose role in the political system should never be underestimated or obscured by the rigidity of legal formalism.

In my younger days as a lawyer, I approached legal questions very formally within the confines of the law. This was a reflection of my training. When analysing legislation or a court judgment, the task was performed against strict legal standards – I looked at what parliament or judges were saying and compared it to a normative position of what they ought to have said. In this task, I looked at the rules, principles and precedents. This allowed me to examine whether parliament was doing the right thing by following the constitution or whether the judges’ decision was consistent with the rules or precedent. Was the interpretation correct?

This is a formalistic method of legal analysis. It is based on the rules, principles, doctrine and precedent. If it does not fit the standard, it’s wrong. If on the other hand, it does fit, it is correct. It’s almost mathematical except that law is not an exact science, hence the variations over interpretation. This approach was informed by my legal education. I was conditioned to believe that answers to legal questions were within the law. You needed to learn where to find the law. Confronted with a factual problem, you framed the legal question and sought the answers from the sources of law – legislation, legal texts or precedent (previous case law). Whatever lay outside was not law and it was irrelevant to the resolution of legal questions.

I found this to be unsatisfactory. It did not answer the “why” questions. I was keen to understand why the rules were designed in a particular way and not the other. For example, I wanted to know why succession rules favoured male children over their female counterparts. I once did a case in which a male child who had inherited an estate had sold the property to my client. My client was perfectly entitled to occupy the property at the expense of the widow and her children because at law he now owned the property. But somehow, although this was right at law, it still left a sour taste in the mouth.

I was curious to know why laws were structured in a particular way and what influenced their design. These answers were not in the law itself, but outside, in external sources, such as culture, masculinity and power. I was also keen to know why judges would have chosen a particular path in making their decisions and why, for example, they allowed some parties but denied others to present their cases before them. Since legal interpretation is not an exact science – there is usually an alternative interpretation of legislation – I was curious as to why judges chose one interpretation and not the other.

These questions could be answered within the law but very often answers lay beyond it, in other areas which law school had never taught us. In order to have a better understanding of constitutional law and its actual dynamics, one is best advised to do some essential reading in political science literature. Why? Because how political actors behave and interact is quite often defined by norms (unwritten rules) that you won’t find in a written constitution.

My curiosity led me to believe that what I had studied in my law degree was not enough. That led me to pursue further studies but still within the discipline of law. There, I encountered alternative approaches to law and found more answers to my questions. But more fundamentally, I found that a lot of the answers to my enquiries were not to be found within the law but in other disciplines. And I got an introduction to those disciplines and found much value in them. Hence the importance of interdisciplinary approaches to law. Hence also the significance of critical approaches to law.

These approaches helped me understand the nature of legal institutions and their dynamics. Recognising, for example, that law itself is a social construct; a fiction that is a product of human imagination the strength of which depends upon our collective belief has been very helpful.

One of the most important lessons was that courts are not merely legal institutions. Rather, they were fundamentally political institutions and judges were political actors, notwithstanding protestations to the contrary. People, not least lawyers and judges don’t like to acknowledge that the judiciary is also a political institution. The position of the judiciary was put in succinct terms by political philosopher Robert Dahl who wrote in 1957, “To consider the Supreme Court of the United States strictly as a legal institution is to underestimate its significance in the American political system. For it is also a political institution, an institution, that is to say, for arriving at decisions on controversial questions of national policy”.

This idea that the judiciary is a political institution can easily be underestimated. This is partly because of an important myth which seeks to place the judiciary above and beyond politics and to distinguish judges from politicians. The notion that the judiciary is a political institution and that judges are political actors presents a paradox: If we say that they are political actors, how then do we sustain the argument that the judiciary and judges must be apolitical, independent and unbiased? It appears to contradict the normative image of judges as detached, apolitical, and politically unbiased actors.

However, pretending that they are not is far worse. That they are political actors does not necessarily mean they should abandon the standards of fairness, impartiality and independence. If anything, an acknowledgement of the judiciary as a political institution helps us to understand their behaviour but it also serves as a constant reminder of the norms and standards they are expected to uphold in the execution of their mandate.  This is why the constitution contains elaborate rules that require judges to remain above the political fray and has provisions that seek to protect their independence and impartiality. These guardrails are a tacit acknowledgement of the political character of the judiciary and its vulnerability to political, social and economic pressures.

Over the course of time, it became apparent that legal literature was not enough. To have a better understanding of how political actors such as politicians, judges, experts and the private sector behave, it was necessary to explore other disciplines including political science, economics and history. On its own, the law was too limited. Questions as to why judges come to certain decisions could not be answered by a formalistic approach to law. It was important to understand their ideological leanings. Are they conservative or liberal? In the US critical questions centre on the judges’ approach to specific issues, such as abortion.

Since they are political institutions, judges can also be potent political tools – for good but also for bad purposes. They can shape policy in positive as well as negative ways and politicians are fully aware of that, hence intense battles over the appointment of judges. In countries like the US where there is no legal limit to the tenure of Supreme Court judges, a leader’s legacy might stretch decades beyond his term of office through his judicial appointments.  Because the myth of independence and impartiality of judges is taken seriously, their statements (judgments) tend to command more respect and deference than statements of other political actors such as legislators. This is why they can be dangerous if they are captured.

Understanding the political nature of the judiciary helps us to understand why the regime of Robert Mugabe purged the Supreme Court and High Court in the early 2000s and packed the courts with loyalists. The existing bench was regarded as a political impediment to the Fast Track Land Reform Programme. It had to be changed. The then Chief Justice Anthony Gubbay was forced into early retirement and soon after the floodgates were opened and other judges followed. Likewise, the political nature of the Prosecutor General’s office helps us understand why President Mnangagwa rejected the top choices submitted by the Judicial Services Commission and settled instead for a lower ranked candidate. A formalistic approach would say it is all correct but it does not reveal the political machinations behind the decision-making.

These questions could not sufficiently be answered by a formalistic approach to the law where the entire focus is on rules, principles and precedents. The answers lie elsewhere, well beyond the law. This is why in recent years I have spent a great deal of time reading political literature, trying to understand how political institutions work. Political scientists have invested a lot of time researching and writing on the subject of political institutions, which is very helpful.

It is from political science that we also learn a lot more about political norms that influence the behaviour of political actors towards each other. These norms, such as mutual toleration and institutional forbearance, which we discussed a few weeks ago, are not found in any books of law. They are not in any judicial judgments. And yet they play a very critical role in how democracies and political institutions work. Indeed, they help us understand that it is not only law that regulates and shapes the behaviour of political actors but that perhaps, more importantly, unwritten rules play a more critical role.

By way of example, the norm of institutional forbearance explains why a President might choose not to use the vast amounts of power that he has even when he legally entitled to use it. A formalistic approach would justify the use of that power even when it is inappropriate. In that case, use of that power would be legal but it would be politically unwise and imprudent. To understand the lack of wisdom and imprudence, you would have to go beyond the legal confines and embrace the norm of institutional forbearance which is outside the law. A lawyer who is trained to look only at what the law says and checks whether the president exercised it accordingly would have no qualms regardless of the fact that the action breaks norms. The lawyer is conditioned to consider formal rules and has no regard for political norms such as institutional forbearance.

The irony is that the constitutionalism that lawyers talk about is itself not merely defined by formal rules but largely by norms. Constitutionalism is about limits on power. In the context of the state, constitutionalism refers to limited government; in other words, a government limited by law but also more significantly, limited by norms. These unwritten rules include, as already stated, the norm of institutional forbearance. This means choosing not to exercise a power that one is otherwise legally entitled to exercise. A president has vast powers to pardon offenders. He could use it to spare his friends and associates. But the norm of institutional forbearance and restraint means a president would hesitate to use it regularly.

Judges too have vast amounts of power but unwritten rules compel them to exercise restraint even where they could legally use those powers. When they are criticised, it is not because they lack the power but that they would have broken these norms by failing to exercise restraint where it would have been appropriate. But formalists won’t understand this, believing instead in the rigid application of rules.

Therefore, norms which don’t feature prominently in lawyers’ manuals but are well-captured in political science are critical tools in the running of governments, even though they are not easily observed because they allow things to move smoothly. But they do become evident when they are broken, for example when a president pardons a friend or associate or a judge makes a perfectly legal but outrageous call. Thus when I analyse a judicial or political decision, I might not take issue with its legality in the formal sense, but I would object to the fact that it breaks an important norm.

There would be an uproar if a president pardons his friend but it would still be legal. A lawyer steeped in formalism would find no problem with the president’s conduct because well, they would simply say it is legal. That lawyer would have no regard for the political norm of presidential restraint in such cases for the simple reason that it is not law. I would say the president is wrong because he is breaking a political norm but the formalistic lawyer would counter by saying the president’s action is perfectly legal!

It is this obsession with legal formalism that meant two dubious cases were brought before a High Court judge during the coup in November 2017 – one holding that the conduct of the military was constitutional and the other holding that the removal of Mnangagwa as Vice President had been unlawful and therefore reinstating him. They were ticking the boxes, preparing defences in cases there were charges of illegality. But if anything those dubious cases exposed the judiciary and the judge as political actors in the process of sanitising the coup. You have to step out of the law and look at the conduct of the actors politically in order to properly define the judge’s political role.

On 11 September 2003, the Supreme Court of Zimbabwe rejected ANZ’s application challenging the constitutionality of the notorious AIPPA on the grounds that the media company had dirty hands since it had not complied with the law before challenging it. I was highly critical of the judgment not only on account of the flawed legal reasoning but also because it was a politically dubious decision. By importing the “Clean Hands Doctrine” from Equity into human rights jurisprudence, the judiciary was creating an undue barrier in the way of aggrieved human rights litigants. That decision effectively banished the most influential newspaper at the time, a blow against the media. Here was a court acting as a sentinel for the government, reducing media space.

Of course, the legality of the Supreme Court decision was contestable on the merits but what was more important was why the highest court in the country had gone to such extreme lengths, in the process embarrassing itself, to deny ANZ their right to be heard. That question could not be answered within the confines of the law. The answers lay in the field of politics, where the government had introduced a draconian piece of legislation which ANZ was challenging. The court, as a political actor, had used its authority to advance the ruling party’s political strategy of silencing the Daily News.

Some blamed ANZ for not registering like other players, a typical case of blaming the victim of repression and using legality as justification. But this is precisely how authoritarian regimes operate – they make you believe that the victims of its machinations are wrong and find formal justification for repression. Since most lawyers are not trained to analyse the political, they are limited to the merits of the judicial decision and unless they can find weaknesses in the reasoning, they might even accept the decision as justified and the aggrieved party as being in the wrong.

The fact of the matter is that most, if not all dictators in the course of history have been enamoured with the law but this is not because they are concerned with human rights, no. They use the law in order to justify and legitimate their actions. An analyst analysing the actions of Ian Smith or the judiciary during UDI using formalism will probably find that everything they did and interpreted was perfectly legal according to rules of the day. The executions carried out in 1969, against all protestations including the Queen’s pardon, were legal in accordance with Rhodesian law and the courts authorised them. Yet it would be utterly naive not to consider the politics behind those decisions.

When faced with a judicial decision you can, therefore, take one of the following: first, a formalistic approach where one looks into its correctness or otherwise in terms of the rules, principles and precedent. This approach is devoid of any other considerations external to the law. The presumption is that the law alone has the answers. The judge is either right or wrong based on what is considered an “objective” legal standard.

The second is a more substantive and critical approach where one goes beyond the formal rules, principles and precedent. Here, one asks why a particular decision was made; what might have motivated it; what the drivers were, beyond legal considerations. This approach borrows heavily from other disciplines like political science, feminist studies, economics, sociology, etc. So when a Zimbabwean judge ruled in 1999 that a female could not inherit an estate ahead of a surviving son, that decision could not simply be explained by legal considerations. Arguably the misogyny and discrimination inherent in that decision reflected patriarchal attitudes which influenced the judge’s reasoning.

Likewise, when the Supreme Court ruled in a landmark and shocking decision in 2015 that employers could fire workers on notice and without specifying a reason, some argued, from a formalistic perspective, that the decision was proper in terms of the law. But it was important to ask why the court was making such a fundamental shift in labour relations after thirty years of the law’s existence. Had it not been known all along? What had changed? What had driven the Supreme Court to adopt such a neo-liberal interpretation of the labour laws? These questions could not easily be answered by resorting to the law. One had to look at the changing patterns of labour relations. Could the fact that most judges were now mass employers following the land reform programme have been a factor? Did they not have an interest in ensuring a more cost-effective way of terminating employment? These questions call the role of judges as political and economic actors, not just as interpreters of the law.

There is a more fundamental reason why particularly when dealing with captured referees, legality is not the sole or even most useful way to assess their decisions. As I said in my earlier analysis of the implications of the judgment into the internal affairs of the MDC, authoritarian regimes have historically carried out repression in the name of legality. They have done horrible things in the name of the law. If you ask whether their conduct was legal, the answer would be that it was perfectly lawful. But that would totally ignore the nefarious political machinations behind such “legal” conduct. Consequently, you would not be able to see the repressive strategies being deployed in the name of legality.

In the recent MDC matter, I made a deliberate choice to focus on the political implications and connotations of the decision, going well beyond the legal technicalities. This was not because there were no issues with the interpretation of the rules, no. It was simply because I believed the political strategy at play was more important. It may not appeal to some who cannot see the Big Picture in advance. It’s often easier to observe with the benefit of hindsight, well after the event. Then it will become more apparent what the decision meant. In 2003, some did not see the implications of the Supreme Court’s Clean Hands judgment – but it took 7 years before the Daily News returned to the streets of Zimbabwe. Unbeknown to most, the Supreme Court had played its part in the repressive apparatus of the state.

But this is how history unfolds – it doesn’t always announce itself loudly and hence big history-making events are often easily missed. They only become prominent after the event, when we look back and say that was the moment this happened and we wonder how we never saw them. That’s why it’s important to remain vigilant; to watch for machinations as they unfold and to challenge them or just merely tell the regime that what it is doing is well known. Others can focus on legal pedantry – asking whether the court has got the law right or wrong, but in the process, they might miss the wood for the trees.

There is no doubt in my assessment that the judiciary and judges are important political institutions and actors respectively and their decision-making is also shaped by their politics and beliefs. What is critical though is that they are expected to exercise more discretion than other political actors, such as politicians. Authoritarian regimes have long known that capturing referees, such as judges is fundamental to their way of ruling, which is why the conduct of the judiciary must be carefully watched and thoroughly scrutinised. It is also why judges must be guarded against the excesses of the powerful executive and protected from poverty because it makes them vulnerable and prone to capture.

Overall, understanding the role of judges as political actors helps us appreciate that they can play a key role in either aiding and abetting authoritarianism or resisting it.