Constitutional Sanctity And Judicail Independence In African Presidential Perception

2348 words - 9 pages

When Robert Mugabe summoned the Zimbabwean judiciary to voice his displeasure with their apparent sympathy for the opposition in relation to his controversial land reform policy, little did the world know that this was the clearest sign to date that would herald a new era of leadership in Africa based on blatant disregard for the established doctrine of Separation of Powers and the initiation of rule by decree. Africa has since that time been plagued with the malaise of Executive excess and bullying of the very body entrusted by the people, with the provision of checks and balances and the safeguarding of a truth all societies hold self evident, namely that all men are created equal and therefore should enjoy equality before the law. The rule of law as expounded by Dicey is currently under siege on the Continent of Africa.This essay examines some recent case studies of the onslaught on the judiciary and constitution and suggests possible means of safeguarding the last haven for the common African Citizen. It must be noted that the protection of the integrity of the Legislature in Africa is not one worth discussing as the sad reality is that no matter how much anyone tries to deny it and no matter how vociferous such denial may be, The Legislature in most African Countries has, is and will continue to be a mere rubberstamp of Executive whim and Caprice.It is trite that in a substantial number of countries in Africa, Constitutional Autochthony still remains an elusive concept. It is from this basis that the "logic" behind African Presidential thought should be examined. Accordingly it must be borne in mind as stated by Professor Wade That the principal of Quod principi placuit legis habet vigorem (the sovereign's will has the force of law) is a perfectly legal principle, but it expresses rule by arbitrary power rather than rule according to ascertainable law. Wade further states that:Faced with the fact that Parliament freely confers powersWith little regard to the dangers of abuse, the courts mustattempt to strike a balance between the needs of fair andefficient administration and the need to protect their ownjudgement, sensing whether it is required by the interplayof forces in the constitution.In Zambia for instance the Constitutional system is one that cerates problems for the judiciary as has been particularly evident when it comes to presidential petitions. In such an event this is the only time when the Supreme court of Zambia exercises its original jurisdiction. This very act of adjudication poses a dilemma in itself as the Chief Justice, who is the presiding officer over Presidential elections then assumes the role of an arbiter. In essence what he is required to do with regard to a Presidential petition is to determine whether or not the person he declared winner of an election was lawfully elected or not. The conflict there is quite apparent. Firstly no person can be a judge in his own cause and secondly a ruling that a President was not...


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