ABSTRACT
In this chapter, I make the case for why the judiciary should be rendering an account of its role in governance in a troubled past at the time of transition. The judiciary wields considerable power in governance at all times in one form or the other. This reality inspires the argument made in this chapter: the significance of accountability of the judiciary for its role in the past as an integral part of transitional justice arrangements in post-authoritarian states. Accountability of the judiciary for its role in a troubled past remains an important but yet largely neglected aspect of transitional justice theory and practice. This is surprising given the significant role it plays in governance. It is even more perplexing that in post-authoritarian transitions with the emphasis on restoration of democratic ethos and practices as well as rule of law, little or no attention has been paid in transitional justice accountability arrangements to incorporating scrutiny of the judicial function into attempts to secure a record of what went wrong in the past. This ought not to be so given the recognition of the intimate connection between conduct of the judicial function and the rule of law. The paucity of critical perspectives on the part played by the judiciary
during a society’s authoritarian period implies that judges and the judicial institution lack a distinct institutional role in governance. In the alternative, it suggests that the judicial function was inconsequential or judicial outcomes were invariably imposed during such periods. Like I stated earlier, the experience of governance in various societies does not support such a position. Judges, courts, or from a more institutional point of view, the judiciary as the third of branch for expressing the power of the modern state, do matter. This book demonstrates that fact later through a comparative discussion of the experience of the role of the judiciary in governance in some authoritarian and post-authoritarian states in different parts of Europe, Latin America, Asia and Africa. Two important queries come up for discussion: should it not be the case
that the judiciary is held to account for its role in societal experience of
gross violations of human rights and impunity? Secondly, what is the relevance of such inquiry? It is anticipated that the inquiry will unearth the significance of the role played by the judiciary in post-authoritarian societies in particular and rifted societies in general. Further, it should also throw some light on the circumstances underlying judicial choices in the task of adjudication. In this chapter, I articulate a theoretical framework for the case for
accountability of the judiciary for past governance at times of political change. I examine the nature of state powers and the role of the judiciary in governance. I highlight the nature and role of the judicial function in authoritarian contexts and focus on the implications of accountability of the judiciary for the rule of law. I argue that judicial governance constitutes a distinct mode of exercise of power and this provides justification for the imperative of accountability of the judiciary in transitional contexts in general and post-authoritarian states in particular. The analysis brings to the fore that public accountability of the judiciary for the past is a key factor in the aspiration for transformed and sustainable institutions of the state.
