WEBINAR 4: MIDDLE EAST & AFRICA - Executive Control Through Judicial Appointments in Turkey and Cameroon
Leighann SPENCER
16 November 2020
A core principle of democracy and the rule of law is that of separation of powers. The executive, legislative, and judicial arms of the state must exist independently of one another in order to provide checks and balances and ward off consolidation of power. Yet in 2020, the separation of powers remains dubious in many countries. One hindrance to separation of powers is executive control of the judiciary. This is the case in Cameroon and Turkey, which will be examined here. By looking at the origins of executive control it can be shown how and why a judicial system becomes constrained by the ruling regime. An examination of the contemporary workings of the judiciary reveals the extent of the issue. This blog then proposes a solution based on an analysis of these two case studies.
Origins of Executive Interference into the Judiciary
Turkey
Although Turkey has a vexed history with regard to separation of powers, it is commonly agreed that overt meddling into the modern judiciary commenced in early 2014. In particular, there was interference into the First Chamber of High Council Judges and Prosecutors (HSYK), the Council responsible for the appointment and discipline of Turkish judges and prosecutors. An amendment was made to the HSYK legislation in February 2014. This gave the executive’s Minister of Justice powers to replace and reassign key members of the HSYK, which he made use of immediately. In April 2014, the Constitutional Court declared the amendment unconstitutional – however, this decision had no retroactive effect, and as a result the Minister of Justice’s changes remained in place.
A further amendment, made in June 2014, provided for Criminal Peace Judgeships (CPJs); courts that have exclusive authority over search warrants, seizures, appointments of trustees, disclaimer trials, pre-trial detention and release or continuation of detention. Appeals can only be heard by another CPJ, rendering it a closed-circuit system. The establishment of the CPJs is especially relevant as the majority of presiding judges are chosen by the HSYK and they hold enormous sway over criminal investigations and the detention of suspects.
To step back and evaluate the context in which these amendments were made, it is important to emphasise that interference into the HSYK was immediately preceded by the extremely high-profile December 2013 corruption probe that addressed the top echelons of the government. This saw the Istanbul Chief Prosecutor’s Office initiate an investigation against senior ministers and businessmen including then Prime Minister Erdoğan’s son. Although warrants were issued and some suspects arrested, investigations were never finalised. Prime Minister Erdoğan labelled it as “a coup attempt against his government” with the perpetrators being a “parallel state structure” comprised of members of the faith-based Gülen Movement. As discussed above, within months, executive interference into judicial appointments commenced, impacting judges involved in the corruption probe. The establishment of the CPJs was then said to be necessary to combat the Gülenist ‘parallel state’.
Furthermore, a literal coup-attempt was undertaken on 15th July 2016; the fifth coup since Turkey became a Republic. The 2016 attempt was also blamed on the Gülen Movement. Within 12 hours, five HSYK members were dismissed. In April 2017, the legislation was amended once more to change the composition of the HSYK. Its membership was halved to 13 people, six of whom are appointed directly by now President Erdoğan with the remaining seven appointed by Parliament. Given that the Justice and Development Party (AKP) holds the parliamentary majority and is led by the President, the President effectively has the authority to elect every member.
Cameroon
In Cameroon there is similar interference with the judiciary. That is, the appointment of judges is undertaken by the executive without safeguards such as an advisory body. However, rather than occurring via a middleman – like with Turkey’s HSYK – this mandate has been directly granted to the President. It is provided in Section 37(3) of the Constitution, which states that the President has the power to “appoint members of the [judicial] bench and for the legal department”. This has been the case since Cameroon’s independence in 1960, with President Biya appointing judges since taking power in 1982.
With that, it is worth delving into the pre-independence context. In 1884, Cameroon was colonised by Germany. In 1919, as a result of World War One, the country was partitioned between the United Kingdom and France. Subsequently, the two Cameroon colonies developed separately: one taking on French language and customs, including the inquisitorial judicial system; the other taking on the English language and British customs, including the common law judicial system. Some 42 years later, not long after the two colonies became independent, the former Anglophone and Francophone colonies were unified as a Federation. By 1972, the Anglophone territory was absorbed within a United Republic and, by 1984, the word ‘United’ was scrapped. Since this time, the government has been dominated by Francophones, with repeated attempts at Anglophone assimilation resulting in their marginalisation.
The effects can be seen in recent years, with tensions escalating and exploding into what has been called the ‘Anglophone Crisis’ from October 2016 onwards. Militant secessionist groups have arisen in Anglophone areas and the Francophone-dominated government has undertaken an unrelenting crackdown. By 2020, it is estimated that more than 3,000 people have been killed and at least 700,000 displaced. The judicial system still remains under the direct control of the President – the executive – with consequences that will be examined in this blog.
Findings
The case studies of Turkey and Cameroon provide examples of executive interference into the judiciary via the mechanism of judicial appointments; the ability to stack the judiciary with loyalists, and to intimidate or punish dissenters. However, in Turkey there is a façade of independence in the form of the HSYK. Indeed, the primary recommendation for the maintenance of an independent and impartial judiciary is the existence of an expert council to undertake appointments and disciplinary measures. Yet, if the council is controlled by the executive, the system cannot be considered independent. That Turkey nonetheless involves a Council shows the history of liberal-democratic practice in the country, alongside the countries’ desire to appease Western observers (particularly given Turkey’s endeavours to join the European Union). In contrast, Cameroon, as an authoritarian country since 1960 and one with anti-colonial sentiment, uses a direct method of judicial appointment.
Examining the specific contexts surrounding the origins of judicial appointment mechanisms provides insight into why the executive may interfere with the judiciary. A strong contention advanced in the existing literature on judicial interference is that it occurs in the face of regime insecurity. In Turkey, the 2013 corruption probe compounded by the 2016 coup attempt have undoubtedly weakened the ruling AKP’s hold on power. Additionally, the 2013 incident showed the threat of ‘judicialization’: that the judiciary was willing to make controversial political decisions. This came despite earlier attempts to reform the courts in favour of the AKP. In Cameroon, it could be argued that tensions with the Anglophone regions and the history of colonisation have also created an insecure regime.
Further theories add weight to the Cameroon case. It has been suggested that leaders in weak state environments, where their legitimacy is questioned, will feel this insecurity on a personal level and, in response, interfere with the judiciary to uphold their rule. Moreover, this is especially likely in authoritarian African regimes where becoming an ‘ex-President’ is known to carry serious risks such as arrest, exile, or even death. Having examined the cases of Turkey and Cameroon to see how and why the executive may interfere with the judiciary, we can look at the concrete impacts of this interference.
Contemporary Judicial Workings
Turkey
The judicial system has been instrumental in Turkey’s post-coup crackdown. Since July 2016, over 100,000 people have been arrested. This includes journalists, teachers, human rights advocates, lawyers, and other civil servants. Over 500,000 people have been investigated through proceedings instigated by the CPJs, which as discussed above, are stacked with HYSK appointees who were, in turn, appointed by the executive. Persecution occurs under allegations that targeted individuals support, or are members of, the Gülen Movement: the so-called parallel state. Moreover, recalcitrant judges are disciplined. At the time of writing, 4,463 judges and prosecutors have been dismissed from their jobs. Some have been detained. Others have been reassigned to different courts or regions to hinder cases, intimidate, or punish them.
In addition to issuing rulings against alleged Gülen Movement supporters, the regime-aligned courts have seized upon another constructed enemy of the state: suspected Kurdistan Worker’s Party (PKK) supporters. In other words, people of Kurdish ethnicity or anyone who exhibits sympathy for the Kurds. To the direct advantage to the ruling AKP, this includes opposition party members, and aligns with long-standing attempts to marginalise and assimilate the Kurds.
Cameroon
Because executive appointment of judges is a longstanding practice in Cameroon, the effects reach back to the country’s early years. This tendency can be highlighted, however, by an analysis of the period beginning with the Anglophone Crisis in 2016. As noted, the country is an amalgamation of Anglophone and Francophone colonies, which used two diverse judicial systems. Although the two systems remained in use post-independence, the Anglophone region has felt marginalised in this regard. For instance, there was no Common Law Bench at the Supreme Court, and common law principles have been gradually phased out of legislation. Furthermore, with regard to the subject matter of this blog, Anglophones have seen little representation when it comes to appointment of judges.
Given that the executive is dominated by Francophones, and the executive has the mandate to appoint judges, this trend makes sense – particularly if the executive seeks judges aligned to the regime’s will. In 2016, there were 1, 542 active magistrates, of whom only 227 were English-speaking. Of the 1,265 French-speaking magistrates, some of those deployed to the Anglophone regions had a civil law background. However, some did not, and the language remained a barrier regardless. In fact, the marginalisation within the judicial system is what led to the original 2016 lawyers’ strikes from which the violent Anglophone Crisis developed. In 2017, as governmental measures to ease the crisis, a Common Law Bench at the Supreme Court was created, and new Anglophone magistrates were appointed. Nonetheless, this has been viewed as too little too late, and the crisis has escalated since.
In addition to this impact, the Cameroonian courts acting with executive interference have actively persecuted those alleged to be supportive of the Anglophone secession. This has included journalists and human rights advocates, and as in Turkey, has been used as a pretext to detain opposition members. Furthermore, state agents have been complicit in human rights abuses as the crisis has evolved – such as destruction of property, looting, sexual abuse, torture, and killing of civilians – and judges aligned to the regime offer little to no accountability. Dissenting judges face repercussions; for instance, in 2017 a Supreme Court Judge was arrested without a warrant for allegedly supporting the Anglophone campaign.
Findings
Through an examination of contemporary workings of the judiciary in Turkey and Cameroon, one can see the effects of a system that lacks independence from the executive. There are two main factors that emerge from the case studies. First, predictably, judicial appointments have led to courts operating in a manner aligned with the agenda of the sitting government. In Turkey, the submissive courts have presided over rulings that ensure any dissenters against the regime are persecuted. At the same time, it has allowed crimes of ruling party members and their allies to go unaddressed. In Cameroon, executive sway over the courts’ composition has maintained the status quo and reinforced Francophone dominance, while shielding state agents from accountability.
The second factor is one that has received insufficient attention in studies of judicial politics: the persecution of minorities. The targeting of ‘dissenters’ in Turkey runs along ethnic and religious grounds. The majority of those prosecuted by the executive-appointed judges are targeted because they are alleged to be members of the Gülen Movement, or because they are Kurdish or are alleged to support the Kurdish cause. In Cameroon, the long-standing marginalisation of those from the Anglophone region has been exacerbated by executive control over judicial members, and this minority continues to be persecuted in the courts. Presently, in both countries, minority groups are tried under the guise of anti-terrorism. They receive little to no help nationally as they are either perceived as dangerous and deserving of conviction, or the self-risk of “assisting terrorists” is too high.
Recommendation
Due to these domestic barriers that thwart the protection of minorities and the upholding of the rule of law, this blog argues that reform will require outside intervention. Turkey and Cameroon are signatories to regional conventions and thus can have cases heard in regional courts, being the European Court of Human Rights and the African Court on Human and Peoples’ Rights respectively. The barrier to this route is that for cases to be tried in these courts, applicants must have previously exhausted all viable domestic remedies. That is, they must have passed through the domestic court system beforehand. This is problematic. There can be little hope for those deemed undesirable by the regimes of Turkey and Cameroon because the courts will likely rule in the regime’s favour. Although going through the system to this end would show the regional courts that the application is hearing-worthy, it is a timely and costly procedure which can ruin lives during the process.
With entrenched executive control via judicial appointments, the judiciaries of Turkey and Cameroon cannot be considered effective. This means that they should not be considered viable domestic avenues when it comes to applications to the European Court of Human Rights or the African Court on Human and People’s Rights. Designating them as unviable would be a good starting point to address the discussed impacts and could provide the much-needed pressure for judicial independence and thus democracy and the rule of law.
Leighann Spencer is a PhD candidate at Charles Sturt’s Centre for Law and Justice. Her research explores the role of identity in Nigerian vigilantism and state involvement. More generally, her expertise is on identity, formal/informal policing, judicial politics, conflict, and state accountability in sub-Saharan Africa and Turkey.
She has previously worked: as a researcher at Ndifuna Ukwazi on anti-vigilantism initiatives and police reform in South Africa; and as a researcher/editor at Platform for Peace and Justice on human rights and the rule of law in Turkey. She is currently employed as a tutor for Crime, Justice and Legal Studies at La Trobe University, and is on the executive council for the African Studies Association of Australasia and the Pacific.
As a freelance analyst and journalist, she has been published at African Arguments, Index on Censorship, Vocal Europe, The Conversation Africa, among others.