This book represents an important contribution to our understanding of judiciaries and democratization in Africa and the third wave more generally. By developing a thought-provoking comparative framework through which to understand the degree of autonomy enjoyed by judiciaries in southern Africa, Peter VonDoepp has gone some way toward plugging a significant gap in the extant literature. Despite the great excitement and numerous publications that greeted Africa's return to multipartism, scant attention was paid to the internal politics of many key democratic institutions. In part, this was because commentators assumed that the patrimonial nature of political competition rendered such institutions impotent. In part, it was because data on these institutions was not freely available, and Africanists were not accustomed to searching for it. As a result, a worrying ignorance of the internal functioning of parties, legislatures, and judiciaries has threatened to undermine our understanding of the microdynamics of democratization (and de-democratization) on the continent. Thanks to a flurry of recent publications, these institutional histories are finally being excavated. Following two important edited collections on legislatures and elections (Joel Barkan's Legislative Power in Emerging African Democracies, 2009, and Staffan Lindberg's Democratization by Elections, 2009), this book promises to return judicial politics to the center stage of debates over the process of democratic consolidation in Africa.
VonDoepp begins by defining judicial autonomy as “a situation where judges can exercise meaningful authority without fear of or manipulation by powerholders” (p. 18). His main aim is to explain the varying degrees of judicial autonomy in three southern African states—Namibia, Zambia, and Malawi—by drawing the lessons of three detailed case studies into an overarching comparative framework. Helpfully, he begins by considering whether existing “strategic” models of judicial development are applicable in the African context, a move that ensures that his analysis will be of great interest to Africanists and comparativists alike. Strategic models focus on whether incumbent governments face incentives to support judicial independence or not based on the combination of 1) the expected utility of an independent judiciary, 2) the political costs of intervention, and 3) the specific capabilities of power holders (p. 20). Chapter 2 reduces the debate to a central proposition: that independent judiciaries are more likely to emerge when governments fear that they will lose control of majoritarian institutions, and so seek to create autonomous checks on executive power for their own protection. Thus, more politically competitive countries should, other things being equal, witness higher levels of judicial autonomy.
The author convincingly argues that his cases defy this expectation. Judicial independence has been most clearly compromised in intensely competitive Malawi, where successive presidents have secured the narrowest of election victories. Nearby Zambia, which has a less competitive but nonetheless vibrant multiparty system, has also experienced considerable manipulation of the judiciary, most notably during President Frederick Chiluba's second term (1996–2001). In contrast, judicial autonomy appears to have been largely respected in one-party-dominant Namibia. Political competition, VonDoepp concludes, does not explain the willingness of incumbents to submit themselves to independent judiciaries.
To explicate the variation within his cases, VonDoepp argues that we must modify existing frameworks to take account of one main background condition and three key variables. The background condition is the neopatrimonial nature of African politics. He argues that leaders in neopatrimonial systems are particularly keen to retain power because the costs of losing (persecution/prosecution/harassment) are so great. Neopatrimonial leaders are also less likely to be able to rely on institutions and the individuals that occupy them to remain independent in the face of political pressure from future leaders. Consequently, incumbents face strong incentives to discount the future benefits that could accrue from a more independent judiciary, and so are more inclined to subvert judicial processes in order to maximize their chances of retaining power in the short run. Significantly, under these conditions, increased competition may lead to judiciaries becoming less, rather than more, autonomous. The author's analysis of this conundrum is concise and powerful; a similar argument could be extended to account for the relative absence of independent democratic institutions in much of multiparty Africa.
The rest of the book is largely devoted to a discussion of three additional variables that emerge from the impressively detailed case studies: 1) the extent to which political issues have been judicialized, 2) whether judges signal a willingness to contest executive authority, and 3) the way that systemic-level factors shape the choices of power holders (p. 25). VonDoepp convincingly argues that what matters for judicial autonomy is the specific combination of these factors in any given case. Where the level of judicialization is low, incumbents are unlikely to be concerned when judges signal a willingness to act independently, and so interference remains low, as in Namibia. Similarly, where judiciaries are pliant, incumbents are unlikely to worry if some political issues fall into the judicial realm, as was the case in Zambia during President Levy Mwanawasa's first term. It is when the significance of a combative judiciary is exaggerated by the simultaneous judicialization of political issues that governments are most threatened, and hence most likely to manipulate the bench, as in Malawi.
The only real weakness of the book is that it rarely moves beyond its three cases. The lack of a more comparative concluding chapter to test whether VonDoepp's framework can account for, say, the more developed judicial context in Ghana and the harassed judiciary in Cameroon is significant because, in some ways, Malawi, Namibia, and Zambia are not ideal cases. Compared to Namibia, Malawi and Zambia are both far more patrimonial and far more competitive. While it is tempting to interpret the lower level of judicial autonomy in Malawi and Zambia as evidence that competition may actually facilitate greater political interference in the African context, the Namibian case is so distinctive that it is not possible to tell whether judicial autonomy is being driven by the absence of competitive politics, or simply the absence of neopatrimonialism. Placing these three cases in a more comparative context might help to resolve this puzzle, and would be a useful focus of future research.
Given the lack of recent work on African judiciaries (one worthy exception is Jennifer Widner's Building the Rule of Law, 2001), Judicial Politics in New Democracies is pathbreaking almost by default. Indeed, it is striking that the vast majority of the material presented in the case studies has been personally collected by VonDoepp; on its own, the original material included here should be enough to make this book required reading for scholars of African politics. Yet, VonDoepp never settles for simply clearing the ground and should be congratulated for producing a genuinely groundbreaking work that successfully marries existing theoretical work to the messy reality of African politics. Despite its deep engagement with theory, the book never gets bogged down in terminology and is all the better for being clearly written throughout. Being far-reaching and readable, it deserves a large audience, both among students of Africa and among those attempting to understand judicial development in a comparative perspective.
