Don’t Expect Democracy at the Courts

Jun 27 , 2020
By Christian Tesfaye

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Last month, to the chagrin of many a political commentator, the Council of Constitutional Inquiry (CCI) recommended to the House of Federation that the Constitution can be interpreted to extend the years in office of the incumbents in both the legislative houses and the regional councils.

There were to be no limits to the powers of the government, and it would be up to agencies under the executive to decide when the election will take place, presumably within at least a year. The recommendation for interpretation, even for the constitutional lawyers that had advocated for it, was too liberal and a violation of trust in the judiciary.

The view was that the CCI - chaired by Chief Justice Meaza Ashenafi, president of the Supreme Court, and largely made up of legal experts - should have passed a decision that was not as beneficial and in such harmony with what the incumbents in Arat Kilo were bidding for.

Does this mean that the judiciary has become politicised once more and that the independence of the Court has been compromised?

Perhaps. But what occurred also calls attention to the fact that the judiciary could never, in theory, actually be independent. It is a political body, and the fact that judges are unelected, inculcated with professional competence and taught in law school to vote their conscience does not make them apolitical.

Despite what it seems, the courts, in any political system, cannot be judged to have been the deciding factor in realising the protection of rights. They are only as progressive and liberal as the overarching political system they find themselves in.

Do not take my word for this. Take modern political theorist Robert Dahl's, who analysed the record of the American court system only to find that their existence did not really make a difference in the protection of individual rights. In his conception, courts are a political body that, democracy or no, are by and large “an element in the political leadership of the dominant alliance.” They are friends to the prevailing worldview, if not a tool for it.

Many would be tempted to ask at this point, what about the glorious years of the Warren Court, where landmark progressive decisions were passed by the Supreme Court to the frustration of conservatives? What about Brown v. Board of Education, which banned segregation in public schools? Roe v. Wade, which ruled that abortion is a right, or the Obergefell v. Hodgesdecision on same-sex marriage? Do these not prove that the judiciary in democratic systems actually protects individual rights?

Make no mistake; all of these are political decisions that could have only been passed in a country with a progressive society. They are rulings that could not possibly be arrived at through a conception of “what is right.” At the most, what the courts have done in these cases is move the ball slightly in favour of one dominant view against another of its equal.

Proof of this can be found with the US Supreme Court itself, which before Earl Warren was chief justice did not have a good record.

Take the appalling Dred Scott V. Sanforddecision that ruled that black people "are not included, and were not intended to be included, under the word 'citizens' in the Constitution,” and thus were property, as then Chief Justice Roger Taney stressed in 1857. Add to this the Plessy v. Fergusonruling, which upheld the constitutionality of racial segregation in 1896.

This is why we may be wrong to hold the CCI responsible for recommending to the House of Federation to go along with such a blatantly liberal interpretation of the Constitution. As a supposedly independent organ of government, it was always bound to view the issue from the perspective of whoever the politically dominant, or very close to dominant, groups were seeing it.

It is not a valueless body but, democracy or no, it should not be expected to do miracles. It will only be as good as the prevailing political group or alliance is.

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PUBLISHED ON Jun 27,2020 [ VOL 21 , NO 1052]

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