Defying court orders: An anti-democratic practice that is affecting Africa

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Defying court orders: An anti-democratic practice that is affecting Africa

One of the biggest threats to democracy in Africa has been the flouting or defying of court orders by government officials and politicians. It has become a culture for court orders involving political rights and political figures to be ignored by the government. Defying a court order is a wilful disobedience and disregard of justice. In Africa, the defiance of court orders has become a serious problem. Senior government officials such as Ministers and Head of States are undermining the judiciary. They disregard court orders and see themselves as being above the law. This amounts to defiance of rule of law and it is a manifestation of impunity and lack of governance and poor democracy in Africa. The defiance of court orders is leading Africa to a point where state won’t be led by Government of laws but of self-centred politicians who have no regard for the independence of the judiciary.

African governments have actively undermined the standing of the judiciary by ignoring orders of the court and as a result of this, courts are becoming irrelevant. Defiance of court orders has seriously undermined the courts and it has further promoted a culture of impunity and has resulted in lawlessness and selective justice where those who do not have power, money and status are the ones only tried and prosecuted. However, it must be realised that democratic principles require everyone to be equal before the law. Everyone should be equal in the eyes of the law and has the right to equal protection and benefit from the law. Equality includes the full and equal enjoyment of all rights and freedom. The state may not discriminate unfairly, whether directly or indirectly, against anyone on any one or more grounds, including race, gender, pregnancy, marital status, ethnic or social origin, sexual orientation, age, disability, region, belief, culture, language or birth. However, this has not been the case in Africa where politicians are in control of the judiciary.

States are expected to guarantee the independence of the judiciary and the court’s decisions are not supposed to be influenced by anyone who is not in the judiciary. When the government itself and its officials defy the law they set a wrong precedence to the citizens and this sets ground for lawlessness. It must also be noted that a court is a court when its orders are enforced, otherwise it becomes irrelevant. It is becoming increasingly clear that impunity and defiance of court orders is a strong driver of human rights abuses in Africa. Human rights abuses now are with the acquiescence of African governments and head of states. The Bashir case provides a perfect example. The deliberate violation of a court order by the South Africa government in allowing Sudan’s president, Omar Al Bashir, to leave South Africa showed how lack of political will can be a threat to democracy and the principle of equal protection of the law.

When the above information is taken into consideration, it can be realised that defiance of court orders poses a serious threat to democracy in Africa. African governments, NGOs and citizens at large must do something if the integrity of the courts and the justice system is to be protected. It is important that court orders are followed if democracy is to work in Africa. Flouting of court orders and interference of political players in the affairs of the judiciary has led to the ineffectiveness of the justice delivery system. Courts need to be independent and they need to operate in safe environments for them to strengthen justice delivery. The judiciary will never operate well it is influenced and controlled by the Executive. When the judiciary is under the control of the Executive and politicians it is weakened and destabilised. The result of this would be lack of public confidence in the courts. For democracy to prevail there should be political will to implement and respect the laws. The absence of the will and the arbitrary interference in judicial matters by politicians critically undermines the effectiveness and efficiency of the courts.

PG_C_Mlambo

Mr Courage Mlambo completed his Masters in Economics at the University of Fort Hare in 2012. He also did a Masters Certificate in Environmental and Health Economics at VU University in the Netherlands. Courage’s research interests lie in Environmental and Resource Economics, Macroeconomics, Development Economics and Health Economics. His research and publication repertoire is versatile including Politics, Social Justice, Democracy and Human rights and Economics.