The triumph of Democracy as the most ideal and popular system of government worldwide is a function of incorruptible and strong institutions, namely, Parliament (legislature); Judiciary, and Electoral umpire. But it is the Judiciary arm of government that holds the key to the sustenance of democracy in any democratic society as evidenced in advanced democracies such as the U.S., France, India, Great Britain and Germany and relatively in developing countries of Africa.
The symbolic feature of American democracy is the peaceful transfer of power, which has been in practice for more than 200 years of the American Independence. This is what makes the system unique, brand, and most copied in human history. Yet, it is not without challenges as manifested in the November 2020 U.S. Presidential election where former President Donald Trump refused to accept the principle of peaceful transfer of power and concede defeat in an election he clearly and squarely lost. Donald Trump, using executive power, made several attempts to use the courts (Judiciary) to reverse the will of Americans but the incorruptible American Judiciary stood by constitutionalism.
The investiture of Joseph R. Bidden as the 46th President of the U.S. and Kamala Harris as the first American and Black female Vice-President on 20th January 2021 was not only a victory for democracy but a POINT made on the essence of strong institutions in sustainable democracy and good governance. That Africa is bereft of strong constitutions is bare of the continental development.
Barrack Obama, the first African-American President of the U.S. in his maiden speech to Africa in Accra, Ghana on July 11, 2009, stated that “Africa cannot make progress without building strong institutions, judiciary inclusive. According to him, “Africa does not need strong men that use coups or change constitutions to stay in power, but it needs strong institutions”. Today, no fewer than four African countries that were under democracy have their government overthrown in a military coup. They include Sudan, Mali, Burkina Faso, Guinea, and of recent Guinea- Bissau. It is obvious that the dearth of strong institutions coupled with bad governance precipitated the military intervention in each of these countries that attracted the wrath of African Unity AU and the Economic Community of West African States E COWAS demanding a return to democratic order. With the Executive and Legislative arms of government in abeyance or suspended the judiciary remains in the periphery given credence to the Newsweek
Magazine cover story, August 1983 that reads” “CAN DEMOCRACY WORK IN BLACK AFRICA?” This was against the backdrop that the outcome of Nigeria’s 1983 polls will be a crucial indicator of whether democracy can work in Africa.
For instance, Nigeria’s 1979 Presidential Election ended at the Supreme Court on the controversial interpretation of 2/3 of 19 states. The Supreme Court in its own wisdom gave victory to the Ruling Party NPN (National Party of Nigeria). Be that as it may, the actualization of Obama’s charge to Africa to build strong institutions for the sustenance of democracy and good governance has taken root in no fewer than six African countries: South Africa, Ghana, Senegal, Kenya, Malawi, Egypt, and to some extent Nigeria in varying degrees, judicial intervention in the electoral process coupled with faith in constitutionalism have propelled democracy to thrive and flourish. It is in this context that the unique role of the judiciary in the protection of the constitution and democracy in select African countries is examined. First is South Africa.
The fall of Jacob Zuma, a sitting president until February 2018, was attributed to the firm position of the African National Congress ANC, Africa’s oldest political party founded in 1912, and the country’s Judiciary, over the plethora of corruption allegations against Zuma. Eventually, Jacob Zuma was found guilty as charged and s e n t e n c e d t o 1 5 year s imprisonment by South Africa Court. Zuma’s appeal to the Supreme Court failed as the apex court in its ruling noted that he had unduly benefitted from the use of public funds spent in his personal home and had failed to uphold, defend and respect the count r y’s constitution. The presence of strong institutions rather than strong individuals ensured that corruption allegations against Jacob Zuma were not swept under the carpet. South Africa witnessed a peaceful transition as Cyril Ramaphosa, Deputy President took the oath of office as President on May 23, 2019.
KENYA is one of the African countries where one political party has been in power since the country’s independence. She also prides itself as the most stable democratic nation in Africa until the August 18th, 2017 presidential election that warranted Judiciary intervention. This is the sequel to the rejection of the poll’s result by the opposition party leader Raila Odinga on grounds of electoral malpractices in which incumbent President, Uhuru Kenyatta was declared the winner by the country’s Independent Electoral Commission. The Supreme Court nullified the election and ordered a fresh pool within 60 days. The re-run presidential election was held on the 26th October 2017 and its significance is that the rule of law prevailed as both the ruling party and the opposition complied with the court’s pronouncements. Uhuru Kenyatta was again de c l a red the winner and democracy triumphed in the east African country.
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