For what was almost certainly the first time in their lives, judges from across Africa have been hearing what advocates specialising in human rights work expect from them. The 20 judges, from 11 African countries, met last week for training in human rights law and practice under the auspices of the University of Cape Town-based Judicial Institute for Africa.
One of the key issues with which they wrestled was how to stop relying so heavily on the jurisprudence of courts and international law from Europe and the USA, and instead ensure that their decisions are informed by the African context, and cite decisions of the African Court on Human and Peoples’ Rights as well as African human rights legal instruments.
As some participants put it, judges need to cultivate a new ‘habit’ of quoting African-based jurisprudence.
During one important session, an advocate specialising in human rights litigation, Tererai Mafukidze, had a rare opportunity to outline to the judges what it is that litigants and counsel should be able to expect from the bench, as well as addressing, indirectly, his colleagues on what it is that courts should expect from advocates in cases on breaches of human rights.
Judges need to be secure in their role, judicially independent and impartial, he said. They should make their own, independent decisions, and stand up for their views even if they differed from their colleagues. ‘You must be faithful to your judicial oath; once the public perceives the judiciary as truly independent and impartial, it will build public trust – even if decisions sometimes go against litigants – and people will be confident to bring cases.’
He said counsel expected that judges would ‘eschew technical objections’ of the kind that only delayed matters and were little more than trying to ‘string you along’. It was a tactic, often favoured by the state, to frustrate human rights litigation, and ended up causing delays, congesting court rolls and adding to costs.
Judges and counsel needed to be comfortable enough to deal with comparative law ‘and how people think in other countries and other courts’. It was disappointing when some judges simply ignored comparative law and ‘did not want to engage’. ‘We need you to confront the cited sources and, if you disagree, to say why.’
He also urged that decisions be written clearly and use simple language, so that the woman who is asking for access to clean water will understand on what basis her application was granted or refused. ‘People can’t understand long and tedious decisions, like 100 pages of technicalities.’ Decisions like this ‘do not speak to the litigant to explain why they lost.’
Another plea was for judges who found themselves in the minority in a human rights matter to speak up and write well-reasoned dissents. ‘We need to hear from judges who disagree. We want to hear them speak.’ Hearing opposing views was important and sometimes minority decisions could ultimately became the accepted norm, he said.
On the prioritised role of investment seen when countries set up commercial courts he asked why there were no human rights courts.
The negative role of delayed judgments was another theme running through the training, and according to Mafukidze, they undermined human rights. It was unjust that people came to court to obtain their rights and were then left waiting for years.
As to advocates themselves, he said the courts were entitled to expect they would do their homework and properly prepare for human rights work, providing in-depth research for the courts to consider and being ready to plead in complex cases. ‘We must help judges by providing a wide variety of sources for them.’ Advocates also had to invest in their own training. But since judges were ‘the biggest consumer of advocacy’, they had an important role to play in training and he referred to training offered to young lawyers by the Johannesburg Bar, in which judges were involved and played a very helpful role.