EMERGING JUDICIAL POWER IN TRANSITIONAL DEMOCRACIES: MALAWI, TANZANIA AND UGANDA A dissertation presented by Rachel L. Ellett to The Department of Political Science In partial fulfillment of the requirements for the degree of Doctor of Philosophy In the field of International Affairs and Public Policy Northeastern University Boston, Massachusetts April2008 © Copyright by Rachel Ellett 2008 All Rights Reserved 2 EMERGING JUDICIAL POWER IN TRANSITIONAL DEMOCRACIES: MALAWI, TANZANIA AND UGANDA by Rachel L. Ellett ABSTRACT OF DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in International Affairs and Public Policy in the Graduate School of Arts and Sciences of Northeastern University, April 2008 3 ABSTRACT It is broadly accepted that an independent and empowered judiciary is central to the rule of law. This dissertation examines the construction of judicial power in emerging democracies through addressing the paradoxical presence of strong judicial power in weak and volatile democracies. I argue that we must unpack our assumptions about democracy and move beyond regime based theories of judicial behavior. I find that existing strategic decision-making theories do not adequately account for the emergence of judicial power in sub-Saharan Africa. Instead this study finds that variation in level of judicial institutionalization or viability accounts for the presence of strong judicial power in weak democracies. A judiciary with a high level of institutional viability is able to withstand the frequent exogenous shocks typically present in sub-Saharan Africa’s neopatrimonial regimes. 4 ACKNOWLEDGMENTS This dissertation would not have been possible without the support and encouragement of many people in Tanzania, Malawi, Uganda, United Kingdom and here in Boston. First I would like to thank the members of my committee. Professor Michael Tolley has been an endless source of support and encouragement and I could not have asked for a better advisor and mentor. Professor Tolley’s intellectual imprint can be found throughout this dissertation. I would also like to thank my second reader Professor Bill Miles for his helpful advice and close editing of what turned into a very long dissertation manuscript. Finally, I would like to recognize the guidance I have received from Professor Peter VonDoepp at the University of Vermont. Peter expressed enthusiasm for this project in its very early stages and was generous in sharing his early case and newspaper article data from Malawi. When I was in Malawi I felt as though I were treading in Peter’s footsteps, as his name frequently came up - usually in reference to his ‘encyclopedic knowledge of Malawian case history’! Last but not least I must recognize the administrative support I’ve received from Janet-Louise Joseph and Barbara Chin while I was in Africa and back in Boston. Fieldwork for this dissertation was made possible by grants from Northeastern University Department of Political Science, The Whiting Foundation, and from the National Science Foundation (Award No.0617472). While I was in Uganda I had the good fortune to spend time at the Centre for Basic Research. Their database of newspaper articles was invaluable, as was their hospitality and friendly welcome. The Makerere Institute of Social Research was professional and efficient in responding to my queries and assisting me in gaining research clearance with the Ugandan government. However, above all I must thank all 5 of my interviewees for giving me their time and providing candid and insightful responses to my many questions. This was my second trip to Malawi and I could not have been more welcomed. In Lilongwe I had the good fortune to attend the Second Constitutional Redrafting Conference, thank you to those people that translated – both language and substance. In Zomba, thankyou to the staff at the National Archives. In Blantyre I spent several days working in the excellent archives at the Nation newspaper – thank you to the Nation librarian. I also conducted most of my interviews in Blantyre and would like to acknowledge the generosity and patience with which my interviewees responded to my numerous and challenging questions. Additionally, I would like to thank Professor Nandini Patel who offered important intellectual insights combined with practical support and friendship. In Tanzania there are two individuals I must recognize above all: Professor Lutfried Mbunda and Professor Chris Maina Peter at the University of Dar es Salaam. Professor Mbunda was very helpful in orienting me when I first arrived and arranged access to the University library. Chris Peter was extraordinarily kind and supportive when he literally opened up the contact list in his cell phone and arranged interviews and appointments with individuals I would have never otherwise met. As in Malawi and Uganda I was constantly amazed by the candor and detail of the responses to my questions - thank you to all my Tanzanian interviewees. While in East Africa I was fortunate to have a home base on the island of Zanzibar. To Annie, Dave and Josh, Mwanaheri, Suleiman, Stephen and Meena thank you for your friendship and support. In London thank you to Claire and Rob for a home when I was working in the SOAS library. My colleagues at Northeastern - Kaitlyn 6 Kenney, Kimberly Jones, Emily Neal, Mary Churchill and Milica Golubovic - have provided a great intellectual network combined with friendship over the last five years. Finally, none of this would be possible without my family. My parents, Jean and Rob Ellett, and brother Tom Ellett cheered me along from start to end and my father was particularly supportive in spending hours reading through very early chapter drafts and aiding in the creation of the table of contents. Last but not least my husband Rod Wyrick, without whom I would have given up on this interminable project a long time ago. I thank you and recognize your many sacrifices, your love and support. And to all those I have neglected to mention asanteni sana. Northeastern University Boston, USA. 7 TABLE OF CONTENTS Abstract . 4 Acknowledgments . 5 Table of Contents . 8 List of Tables . 10 List of Cases and Statutes . 13 List of Abbreviations . 23 Chapter 1 Introduction . 24 I: Research Questions II: Dissertation Outline Chapter 2 Literature Review and Methodology . 32 I: Third Wave of democracy in sub-Saharan Africa II: Competing Theoretical Explanations of Judicial Behavior III: Methodology and Research Design IV: Data Chapter 3 Colonialism, Judicial Power and the Transition to Independence . 55 I: Colonialism, State Formation and Customary Law II: New Courts Old Judges and Independence Constitutions Chapter 4 The Judiciary under Authoritarianism . 97 I: Theoretical Explanations II: A Brief Overview III: Preventative Detention and Emergency Powers IV: Judiciary and the Ideological Framework V: Parallel Jurisdictions Chapter 5 Internal and External Judicial Autonomy. 177 I. Differentiation from Political Environment II. Durability III. Legitimacy IV. Formal External Autonomy V. Informal External Autonomy Chapter 6 Malawi 1994-2007 . 265 I: Political environment II: Judicial decision-making 8 A. Prelude to a new Constitution B. Early Political Cases C. Election Petitions D. Separation of Powers Cases E. Significant Rights Cases F. Standing and Public Interest Law Chapter 7 Tanzania 1994-2007 . 345 I: Overview of political environment II: Judicial decision-making A. Judicial Review B. Election Petitions C. Separation of Powers D. Procedural issues and locus standi E. Significant rights cases Chapter 8 Uganda 1995 – 2007 . 407 I: Political Environment II: Judicial decision-making A. Judicial Review B. Procedural issues and locus standi C. Election Disputes and Petitions D. Significant rights cases Chapter 9 Conclusion . 499 I: Emerging Judicial Power in Transitional Democracies A. Has the judiciary functioned as an insurance mechanism? B. Are judges strategically responding to changes in the political environment over time? C. Institutional Explanations II: Implications beyond Eastern and Southern Africa III: Future Research Appendix A Flow Charts of Court Systems . 529 Appendix B Summary of Law Reporting in Malawi, Uganda and Tanzania . 535 Appendix C Timeline of Judges Salary Dispute . 536 Appendix D Timeline of Events Concerning Referendum on Multipartyism . 539 References . 541 Vita . 553 9 LIST OF TABLES Table 2.0 World Bank Governance Indicators Table 4.0 Data on Post-Colonial Cases in Malawi Table 4.1 Uganda Timeline of Significant Events Table 5.0 Independence of the Judiciary Table 5.1 High Court at Blantyre Civil Case Data 1990-2006 Table 5.2 Supreme Court Case Data 1966-2006 Table 5.3 Recruitment and Promotion of Judges Table 5.4 Judicial Appointments according to Region, December 31st 2006 Table 5.5 Percentage of Total Budget Allocated to Tanzania Judiciary Table 6.0 Percentage of votes for the major party alternatives Table 7.1 Percentage of votes for the major party alternatives Table 7.2 Selected Politically Significant Cases Table 9.0 Trends in the Emergence of Judicial Power in Transitional Democracies 10 LIST OF FIGURES Figure 1.0 Colonial Era Timelines Figure 2.0 Uganda Colonial Court Structure Figure 9.0 Zones for the Construction of Judicial Power 11 LIST OF GRAPHS Graph 5.0 Percentage of Total Budget Allocated to Tanzania Judiciary Graph 5.1 How do you feel about dismissed judges who ruled against the government? Graph 5.2 What would you do about dismissed judges who ruled against the government? Graph 5.3 How much do you trust the courts of law? 12 LIST OF CASES AND STATUTES Malawi Cases Aaron Longwe v. Attorney General (1993) The Administrator of the Estate of Dr. H. Kamuzu Banda v. The Attorney General (1997) Alliance for Democracy and Wallance Chiume v. Chakufwa Chihana (2005) Ally Juu va Watu v. Loserian Mollel & Another (1970) Anti-Corruption Bureau v Amos Chinkhadze and Joe Kantema ( 2003) Apex Car Sales Ltd v. Anti-Corruption Bureau Civil Cause No. 3479 (2000) Attorney General ex parte Mary Nagwale (2005) Attorney General v Chipeta (1994) Attorney General v.