Data for: “Democratic and judicial stagnation,” in: Pathways to judicial power in transitional states: Perspectives from African courts

Résumé 0

This is an Active Citation data project. Active Citation is a precursor approach toAnnotation for Transparent Inquiry (ATI). It has now been converted to the ATI format. The assembled project can be viewed at: https://qdr.syr.edu/atipaper/democratic-and-judicial-stagnation Broader research project overview Contemporary expressions of judicial empowerment, this book argues, are the product of multiple causes linked together in a historical sequence. The puzzle I grapple with in this book is the presence of intermittently high levels of judicial empowerment in Uganda and Malawi and weak levels of judicial empowerment in Tanzania. All three cases exhibit high levels of neopatrimonial rule and elite insecurities and high levels of interference. I argue that evidence of higher levels of judicial empowerment in Uganda and Malawi, compared to Tanzania, is best explained through reference to the critical junctures. These critical junctures have helped shape the internal dynamics of the institutions, which in turn strengthen or weaken the ability of the courts to resist interference and maintain decision-making autonomy. Courts have evolved as the result of particular historical struggles and pathways. The footprints of colonialism, authoritarian dictators, and elite-led transitions are reflected in contemporary institutions. The book finds that high levels of interference do not necessarily correlate with judicial weakness. Despite intense attacks on judicial independence, the courts have sustained some autonomy in Malawi and Uganda. Judicial decision making acts as a feedback loop, and depending on the degree of institutional strength (i.e., levels of support, solid leadership, strong institutional protections), courts will then shape future strategies against interference. The book identifies seven ways in which judges construct their own power: Through decisionmaking, signaling to both the government and opposition Through the formation of strategic off-bench alliances Through the emergence of a courageous judicial culture Judicial leadership is critical Speed at which judges handle and dispose of cases Judges frame their decisions beyond the mere legality of the question Deep pool of potential judicial personnel In sum, examining the pathways to judicial empowerment allows us to reveal critical moments of change, but also to identify the iterative effects of regime and institution interaction. In other words, judicial empowerment is not simply a reflection of the route or path taken, but of the cumulative effects of institutional layering over time. Methods The primary method of measuring the dependent variable – judicial empowerment - is an examination of politically salient cases. Politically salient cases were identified through interviews, newspaper coverage, and selected secondary literature. I collected reported cases in the United States (Harvard University) and the United Kingdom (School of Oriental and African Studies and the British Library). In addition, the Africalaw database incorporates Tanzania and Uganda from 1999 to the present. More recently, the Africalii project has collected cases in all three countries. In the field I found that the only official record is the handwritten court registry. In Malawi, I collected data from the court register. Tanzania has national law reports through 1997. However, as my research on Tanzania progressed, it became evident that the editorial board was alleged by several informants to have been highly politicized. Finally, Uganda has not published a law report since 1957. But old case files were inaccessible due to limited physical access. In Uganda, case files are stored in the basement of the High Court in Kampala. The room is now so full, it is impossible to open the door to the storage facility. Despite these challenges, I was able to obtain a close to complete universe of what I term “politically significant cases.” Analyzing the universe of significant political cases, and conducting a close textual analysis of the actual decisions, have led to important insights that might not be gained through simply counting pro- or anti-government decisions. The majority of fieldwork was conducted from August 2006 to July 2007. Second trips to Malawi and Tanzania took place during the summer of 2009. While conducting field research, I also collected archival research at newspaper offices, as this was important for piecing together timelines and identifying important cases. Finally, the last major resource for my analysis was interviews. I conducted interviews with legal scholars and lawyers, international donors, civil society activists, and most importantly with judges in all three countries. I interviewed several high court judges and at least one constitutional/supreme court judge in every country. The interviews were semi-structured to allow for comparison among the respondents, but not so rigidly as to shut off the possibility of gleaning information I had not previously considered. The ultimate goal was not to interview every past and present high court justice, but to garner enough information to discern both behavioral and attitudinal patterns. Through the use of snowball techniques, I interviewed more than sixty informants in the field. One of the problems with relying on referrals was that people often connected me to individuals they believed would tell me what I wanted to hear. This often included the more outspoken and assertive judges, for example. So in addition I approached many individuals not through referral, but based on prior desk research. The interviews were conducted anonymously, and ranged in length from 30 to 160 minutes. Interviewees are identified throughout by occupation and nationality only. Specific titles such as “Chief Justice” have been eliminated. Data capture modes Interviews were recorded and transcribed. Notes were taken during all interviews and sometimes observations recorded after the interviews. All interview data are kept anonymous. Subjects are prominent political and legal elites. They are identified by profession and location only. Court cases were scanned and photocopied. Newspaper articles were summarized and logged in data sheet in Excel. Logic of activation and annotation I activate citations that are central to my argument, or are controversial and contestable within the literature. I annotate the majority of citations drawn from original field data. I explain the data collection techniques and methodological limitations, particularly as it relates to news sources. I also annotate citations which speak directly to major theoretical claims and controversies in the literature. I also attempt to link the annotations to either full text or large portions of the interview, news source, court judgment, secondary literature. In regards to attaching portions of the interview transcripts, I have redacted large portions of the interview to preserve anonymity. I provide a page or two before the quote and after the quote to elucidate the full context of the quote and allow the reader to further assess its validity and usefulness in supporting my arguments. In some cases additional data has been collected since the publication of the book. This is referenced and, where possible, is provided. References to court judgments are linked to full PDF’s of the judgments. Some of these PDF’s are the author’s own copies, others are now available online. Where possible, both the PDF and the URL are provided. This is also the case with news articles. Where web links are not available, extended quotes or portions of the original article are included.