On judicial agency and the role of court allies: Towards understanding judicial empowerment in Africa’s sub-regional courts

With the growing judicialisation of politics worldwide, Africa’s sub-regional courts (RCs) are increasingly invited to decide on issues of high political salience, ensuing in critical media attention and threats to judicial independence. The East African Court of Justice (EACJ) did not go unscathed following the famous Anyang’ Nyong’o ruling, which saw the creation of an Appellate Division and explicit threats of disbanding the court. Opportunely, these threats did not come to pass when judges drew on the support of their allies to defend themselves against the backlash. On the contrary, the absence of a robust network of supporters illuminates the collapse and dissolution of the Southern African Development Community (SADC) Tribunal. But, even though scholarship on African RCs tends to agree on the need for a robust network of court constituencies to foster judicial empowerment, especially as courts dive further into overtly politicised jurisprudence, we hardly know much about how judges mobilise such allies and how the alliances support judicial empowerment. This dissertation chapter addresses this gap through an in-depth case study of the East African Court of Justice (EACJ) and advances the workshop goals on two fronts. Conceptually, it keeps in conversation with debates on informal judicial relations in the Global South that emphasise the relevance of informal judicial networks and collective agency as a prerequisite for constructing judicial autonomy and extends the discussion to African RCs. It argues for centring judicial agency, instead of institutional constraints, to better understand the peculiarities of judicial empowerment in Africa’s RCs. Methodologically, the study takes informal encounters and observations in the field seriously, in addition to semi-structured judicial and legal elite interviews, to fill in gaps where formal methods may not tell us the entire story. The chapter finds that judges are proactive proponents in constructing their empowerment through strategic mobilisation of support from lawyers, relevant regional and national institutions, politicians, and non-governmental organisations. Likewise, it delves into how judicial allies employ strategic tactics to empower the court – public engagements to elicit support against threats to the court, organising trainings on the court’s mandate, litigating issues that impact the court’s independence and intervening as amicus curiae in overtly politicised cases. In sum, it argues that building judicial allies provides a solid foundation of support on which ICs rely to fend off backlash, grow networks and visibility, negotiate national and regional politics, and sometimes even their survival rests on it. Researching judge-centric first-hand accounts of judicial mobilisation provides much-needed insights into conceptualising sub-regional judges as political actors who balance delicate, complex, and fragile national and regional politics in weakly democratic settings to forge, build, construct and protect their autonomy through strategic resistance.