Among the perennial concerns for political scientists who study courts is the authority of judges vis-à-vis other branches of government. This question of how judicial power emerges has been studied in the US,Footnote ¹ Europe,Footnote ² East Asia,Footnote ³ the Middle EastFootnote ⁴ and Latin America.Footnote ⁵ It also motivates Rachel Ellett's Pathways to Judicial Power in Transitional States: Perspectives from African Courts.

Why study judicial empowerment in African courts? This book begins with the assumption that, given sufficient freedom, courts and judges in Africa can serve to limit the power of the state through their rulings on politically salient cases. As such, the judiciary may be a bellwether for human and civil rights, particularly during periods when the state may be systematically denying those rights. In this way, judges become important brokers of politics, either entering or being asked to insert themselves into both everyday legal disputes and heated, sometimes deadly, political debates.

Ellett's book investigates the evolution of courts and the construction of judicial power in three African countries: Malawi, Uganda and Tanzania. The author's approach is both historical and empirical. The book draws on constitutional rulings and additional reported case law in each country, along with newspaper accounts and in-depth personal interviews with more than 60 judges, lawyers and other “important stakeholders” across multiple trips to the three countries between 2007 and 2010.Footnote ⁶

The book seeks to answer the following core question: in what ways has judicial empowerment shaped or been shaped by colonialism and the transitions towards and away from authoritarianism and multiparty elections? This question can be generalized across political contexts in the global north and the global south. Ellett's answer is that Malawi, Uganda and Tanzania each has a colonial legacy that, over time, diverges onto distinct postcolonial political paths. In each case, Ellett studies patterns of state interference with the courts, judicial responses to political interference and politically powerful decisions that judges reach.

In the three countries, weak and politicized judiciaries under colonial rule remained weak and politicized during the transition to independence. As with other African states, colonial independence brought little change beyond “Africanization” to strengthen the institutional makeup of the judiciaries. That is, national independence in Malawi, Uganda and Tanzania did not lead to an appreciable rise in judicial independence.Footnote ⁷

The three countries showcase various levels of political interference over time and each also provides examples of how judges assert themselves. Through its militarization, the Ugandan government ensured that its judges suffered the most direct political interference relative to Tanzania and Malawi.Footnote ⁸ Ellett powerfully labels Uganda's judiciary “impotent” as the country consolidated its authoritarian rule, with constitutional cases after 1972 either reported a decade or more after the decision or not reported at all.Footnote ⁹ In Tanzania, despite a mostly superficial democratic transition and no radical shift in the political environment relative to the other two countries, Ellett argues, judges constantly balanced when to speak up and when to keep quiet.Footnote ¹⁰ Further, despite Malawi's “clean break” with the past and relatively weakened judiciary, Ellett argues that it, too, has had a high level of “judicialization” of national politics.Footnote ¹¹

Ultimately, Ellett shows that in each country multiparty elections and democratic transition paradoxically narrowed judicial power. Why? Multipartyism gave rise to increased insecurities among executives, which led those ruling elites to retrench the power of judges who might rule against them or their parties in politically salient decisions around contested elections or electoral fraud. Thus, states both restricted judicial power and turned to judges to resolve electoral disputes, simultaneously threatening and legitimizing the power of judges.

The book contributes to the field of African law in two significant ways. First, the conclusions from the three countries are as distinct as the countries themselves, and Ellett charts these divergent paths. The detail in the book is considerable; chapters are replete with lengthy quotes (some two pages each) from difficult-to-obtain original source material, cases and interviews. Rather than dividing the book's chapters by country, Ellett combines the detail into chapters that speak to all three countries.

Secondly, the book provides scholars and students of African courts with a pithy and diachronic organizing rubric to study judicial politics in other epochs or places: colonialism, independence, the transition to the first and second multiparty elections, and the period after the second election. Thus, a state's colonial independence and its first and second multiparty elections become pivotal flashpoints in which the judiciary and its power may be understood. Indeed, these moments form “critical junctures” in the evolution of the judiciary. In this manner, the book invites future authors to map a country's judicial evolution onto its political evolution. The author's point is that scholars of African law and courts can and should study courts not only as political actors but also as being mutually constitutive of the political formations that surround them.

The book does not attempt to answer all questions related to the complexity of the countries under study or their judiciaries. Three issues for future research remain. First, the book's organizing focus on colonial independence and postcolonial multiparty elections may serve to invite some scholars to theorize about how other important political, economic or social crises of the last generation form additional or alternative flashpoints for the activation of judicial power. These may include, for instance, civil war, insurgencies and massive human flight (as in Uganda) or HIV / AIDS and other health emergencies (as in Tanzania and Malawi).

Secondly, socio-legal scholars of the legal profession may wish to see additional work on African law that challenges the organizing assumption of Ellett's book that assertive judges and lawyers promote democratization. That is, judges and lawyers often align themselves with opposing political interests when new regimes emerge, and legal professionals can and do assert their power for less benign or even nefarious purposes, even under the guise of human rights discourse.Footnote ¹²

Thirdly, the book's focus on “transitional states” or “hybrid … semi-authoritarian [and] semi-democratic” regimesFootnote ¹³ invites authors to extend Ellett's findings beyond hybrid regimes. Such work might reveal, for instance, how judges construct their own power, through “signalling”, “alliances”, “judicial culture” and “personnel”,Footnote ¹⁴ either in more robust democratic societies (for example Botswana, Senegal and South Africa) or during extended periods of non-democratic or military rule (for example Somalia under Siad Barre, Sudan under Nimeiri and Zimbabwe under Mugabe).

Ultimately, democratic transition is not a peaceful or linear process, certainly for states, nor, as Ellett's book illuminates, for their judiciaries. Scholars interested in the critical moments of institutional change for the judiciaries in Malawi, Uganda and Tanzania have a nuanced and richly detailed history in Pathways to Judicial Power in Transitional States. The book deftly weaves together these three complex judicial and political histories in sub-Saharan Africa.