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Since the NCM in 2018, the courts have impacted on our political destiny as never before. This impact, with an election petition looming, could soon become even more game-changing.
In the rulings of the recent election cases, several court practices raised my concerns. I here highlight two of them, which may have implications for the quality of our jurisprudence going forward. The first concerns the trustful reliance by our lawyers and judges on prior case laws (precedents) that likely were decided in judiciaries polluted by local politics. Many of these precedents were birthed in countries ranging from weak democracies to full totalitarian; or were birthed in societies now described as democratic but during a period of undemocratic governance.
In such countries or during such times, judiciaries would have been assaulted by direct political pressure, political meddling or full political control. Regardless, every prior court decision from every corner of the Commonwealth seems to have the power to shape or bind opinions in our courts. That these prior cases have not apparently been vetted for their moral and legal legitimacy is troubling and undermines the quality of our jurisprudence.
No doubt, assessing the political context behind court decisions from Africa to Asia to the Caribbean is an enormous challenge. It is a challenge normally taken up by legal academics and law departments. Whether these are up to the task or not, our courts must be more vigilant in their use of prior cases from countries whose politics and political history have influenced the outcome of cases as much as, or even more than, good law.
Secondly, I see no wisdom in the practice where our Court of Appeal (CoA) does not issue a single majority decision, but instead allows each judge to offer individual opinions. This practice, if indeed it is, undercuts the quality of rulings as these do not benefit from the expertise and experience of all CoA judges working together. For clarity and consistency, courts must speak with one voice, whether singly or as a synchronized majority. Where differences of opinion exist within a panel of judges, our CoA would do well to present its rulings to the public in the highly structured manner used by the US Supreme Court.