Who Cares About Courts? Creating a Constitutency for Judicial Independence in Africa

While American scholars and judges generally assume that it is beneficial to insulate courts from politics, Jennifer Widner offers a contrasting perspective from another region of the world. In Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa, Widner examines the role of courts and judicial review in democratization in Africa. She focuses on the role of one judge, a man who would see himself as embodying a role in Tanzania similar to that of Chief Justice John Marshall in the United States. Francis Nyalali, Chief Justice of the High Court of Tanzania, worked to carve out a role for courts in the politics of his nation. He focused especially on the importance of public support for the courts, on judicial engagement with political culture, and on creating a constituency for judicial review. Creating a public that cared about courts was, for Nyalali, an essential component of democratic government. Widner, an African politics scholar, focuses on the development of the judiciary within common law Africa, especially Tanzania. Yet in constructing this narrative, she writes from a perspective sensitive to the ideas and assumptions held by U.S. scholars about American law and legal institutions. As a result, she often frames points by placing them within the context of ideas about the law prevalent in American scholarship. What results is a narrative about Africa that opens up new perspectives on legal institutions in general, including legal institutions in the United States; This Review first examines Widner’s depiction of Nyalali’s role in Tanzania. It then turns to the questions of how this African example can shed light on debates about courts in the United States and other nations. In particular, this essay argues that the example of Nyalali raises questions about the downsides of American assumptions about virtues of judicial disengagement.