Symposium on the role and impact of judicial globalization

Author’s Note: This symposium on judicial globalization is published on www.satangnabaneh.com. The introduction is followed by four posts exploring the role and impact of foreign and international law for constitutional adjudication.

Introduction

“Globalization is thought of more in terms of corporations than courts; more in terms of global markets than global justice”.

Around the world, there is a recognition that globalization is changing the contours of law and creating new legal institutions and norms. The need for global taxonomy is more important especially in light of legal globalization in which knowledge transfer is needed not only in different areas of laws but across different legal systems.  In this regard, there is increasing dialogue between judges; cooperation between national judicial authorities and other foreign courts; and international and regional courts, resulting in a globalized jurisprudence. However, judicial globalization has attracted much political, judicial, and academic attention and controversy. There are still on-going debates about the uses and abuses of comparative foreign case law. Part of reflecting on how we are using existing legal mechanisms to effectively protect human rights in The Gambia lies in the exploration of the intermingled nature of human rights systems within a global world.

Key themes

The series will broadly focus on one of the most effective mechanisms of judicial globalization: constitutional cross-fertilization in which Courts cite each other’s precedent on constitutional issues.  I explore The Gambia’s attitude in the usage of transnational materials. Drawing from the unique case study of South Africa, I ask the following questions:

1.         What is the proper and legitimate use of foreign and international legal sources?

2.         In the wake of the departure from traditional transplant, how has the South African

Constitutional Court evolved from being a “borrower” to one of the most influential “lender” courts on constitutional matters?

In recent times the South African and the Canadian constitutional courts have both been highly influential, apparently more so in recent decades than the U.S. Supreme Court and other older and more established constitutional courts. In the present conditions of globalization, there is much utility in a discussion on The Gambia’s Supreme Court’s attitude and practice of transnational legal argument, having particular regard to human rights in The Gambia.

To respond to these questions, I will explore the nexus between judicial globalization and human rights and the relationship between the two. Second, I will provide a theoretical background on transformative constitutionalism, guided by the work of American Scholar Karl Klare, who first propounded the concept in 1998 urging South African judges to interpret and apply the Constitution in such a way as to bring about social justice, and to create an egalitarian society. This is a bottom-up process of globalization conducted by the world community of judges. Third, I will look at the role and impact of international and foreign law on adjudication in South African Courts- mainly at the Constitutional Court. This part deals with the constitutional developments in the application of international and foreign law. I will then l explore the ability of the Supreme Court of The Gambia in capturing and crystallizing the work of their fellow constitutional judges around the world.

Over the course of the next four posts, I hope to answer these questions. This series on judicial globalization is premised on the belief that innovative provisions in constitutions coupled with the willingness of judges in citing foreign case law serves as one of the most suitable tools that foster the migration of human rights around the globe and from one nation to another, through a bottom-up process of globalization conducted by the world community of judges.

The goal of this series is to contribute to bringing scholarly attention to this issue given the dearth of scholarship in The Gambia in this regard. I hope that this series is thought-provoking and invite you to engage in this discourse, as I leave you with further questions to explore.

Judicial globalization and human rights

The UN General Assembly defines globalization as a “complex process of structural transformation, with numerous interdisciplinary aspects, which has an impact on the enjoyment of civil, political, economic and cultural rights, including the right to development.”  It further considers globalization to be “not merely an economic process, but that it also has social, political, environmental, cultural and legal dimensions, which have an impact on the full enjoyment of all human rights.”   According to Viljoen, “international human rights law constitutes the collective responsibility of humanity’s conscience and captures a shared vision for a humane world.”  In the context of increasing globalization, international human rights law is becoming a part of international cooperation and collaboration.

Globalization further applies to and affects the law. This is seen through the transcending of legal ideas across national borders encompassed in judicial globalization. The concept of judicial globalization has generated considerable interest among legal academics and judges. Anne-Marie Slaughter, the leading proponent of judicial globalization, defines it as a “diverse and messy process of judicial interaction across, above and below borders, exchanging ideas and cooperating in cases involving national as much as international law”.  Slaughter explains the process to include all activities:

from the most passive form of cross-fertilization to the most active cooperation in dispute resolution, requires recognition of participation in a common judicial enterprise, independent of the content and constraints of specific national and international legal systems. It requires that judges see one another not only as servants or even representatives of a particular government or polity, but as fellow professionals in a profession that transcends national borders. This recognition is the core of judicial globalization, and judges, like the litigants and lawyers before them, are coming to understand that they inhabit a wider world.

Slaughter’s description of the process is apt. On the issue of cross-fertilization, which is mainly done through the use of comparative law by domestic courts, I disagree with her assertion that it is the most passive form of judicial globalization. She, herself, has noted that “increasing cross-fertilization of ideas and precedents among constitutional judges around the world is gradually giving rise to a visible international consensus on various issues—a consensus that, in turn, carries compelling weight.”  Cross-fertilization is not a new phenomenon. However, the practice has expanded due to the formation of new democracies and associated constitutional courts.  Justice La Forest of the Canadian Supreme Court representing the mindset of the global judge shared his enthusiasm:

Nevertheless, the result of the developments I have described ? and there are others ? is that in the field of human rights, and of other laws impinging on the individual, our courts are assisting in developing general and coherent principles that apply in very significant portions of the globe. These principles are applied consistently, with an international vision and on the basis of international experience. Thus, our courts ? and many other national courts ? are truly becoming international courts in many areas involving the rule of law. They will become all the more so as they continue to rely on and benefit from one another’s experience. Consequently, it is important that, in dealing with interstate issues, national courts fully perceive their role in the international order and national judges adopt an international perspective.

This clearly shows that international human rights law has evolved beyond the national level to three tiers: sub-regional, regional, and global levels. However, countries continue to bear the primary responsibility for human rights. Greater internationalization in an increasingly globalized world makes the law of other states more relevant. International sources can thus serve as persuasive authority in aiding domestic decisions on human rights issues. In the same vein, Aharon Barak, President of the Supreme Court of Israel on the importance of comparative law stated:

I have found comparative law to be of great assistance in realizing my role as a supreme court judge.  The case law of the supreme courts of the United States, Australia, and Canada, of United Kingdom courts, and of the German Constitutional Court have helped me significantly in finding the right path to follow. Indeed, comparing oneself to others allows for greater self-knowledge.… Examining a foreign solution may help a judge choose the best local solution. This usefulness applies both to the development of the common law and to the interpretation of legal texts.

Barak’s approach connotes a broader vision focused on the role of judges, which maybe a more attractive approach for many judges.  On the other hand, Chief Justice McLachlin of the Canadian Supreme Court noted that “[in]the Canadian experience ? one that has, from the beginning, accepted foreign law as capable of providing useful insights and perspectives. Foreign law is used selectively, where it is relevant to and useful in resolving dispute.”  The Canadian Justice reflects a sentiment that some U.S judges have expressed as well. This is through a very utilitarian approach to using foreign cases in which foreign law serves as an inspiration and is used only when it is helpful.

However, in recent times, both the South African and the Canadian Constitutional Courts have been highly influential, apparently more so in recent decades than the U.S. Supreme Court and other older and more established constitutional courts.  This rising prominence of these other courts and decline of American influence might point to the opposition of the American courts to the use of foreign sources, which is grounded on exceptionalism and originalism, or as succinctly put by Justice Ginsburg “you will not be listened to if you don’t listen to others” 

There have been some decisions in the past that referred to international sources and subsequent opposition.  An example can be seen in the case of Atkins v. Virginia,  which dealt with the issue of whether the execution of mentally retarded offenders was unconstitutional. Justice Stephens in writing for the majority noted the international communities’ disapproval in the footnotes. In return, both Chief Justice Rehnquist and Justice Scalia dissented and stated that:

[s]eldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members. … The views of professional and religious organizations and the results of opinion polls are irrelevant.  Equally irrelevant are the practices of the “world community,” whose notions of justice are (thankfully) not always those of our people.  We must never forget that it is the Constitution for the United States of America that we are expounding. … [W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.

In Lawrence v. Texas, the majority relied on international sources to overturn a Texas statute that criminalized sodomy. In the case of Roper v. Simmons, the majority drew on international criticism of the death penalty for juveniles to find that it should be prohibited in the United States as cruel and unusual punishment under the Eighth Amendment. Justice Kennedy, writing for the majority, embarked on a wide-ranging review of the abolition of the juvenile death penalty by nations that “share our Anglo-American heritage”, and by “leading members of the Western European community”, and referred as well to multi-lateral conventions of the UN and others.   He observed that the United States was the only country in the world that continued to give official sanctions to the juvenile death penalty and acknowledged the “overwhelming weight of international opinion” against it.  He concluded that “[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

Justice Scalia’s dissent begins by describing the majority opinion as “a mockery” of the framers’ intentions, and a “legislative judgment” in which the majority has “look[ed] over the heads of the crowd and pick[ed] out its friends”.   In his view, the premise that American law should conform to the laws of the rest of the world “ought to be rejected out of hand”.  Stating that [t]o invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.”  He adds:

To begin with, I do not believe that approval by “other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment.  More importantly, however, the Court’s statement flatly misdescribes what is going on here.  Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.”  On the contrary, they are cited to set aside the centuries-old American practice? a practice still engaged in by a large majority of the relevant States? of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing.  “Acknowledgment” of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment? which is surely what it parades as today.

Justice Scalia’s view feeds into the overall criticism of the use of international law as cherry-picking. He sees the citation of foreign sources as picking out ones’ friends by looking over the heads of the crowd. The use of foreign sources is seen as opportunistic and the arguments highly simplistic and selective.

The approach of a particular country’s accounts to international and foreign law will be characterized by the country’s attitude to and reception, which differ across countries. The relevance of international and foreign law is based on the place and role accorded to it by the country’s constitution. For instance, in contrast to courts in the United States, other constitutional courts demonstrate a much more positive attitude toward foreign sources such as the Constitutional Court of South Africa, which continues to borrow from other jurisprudence around the world.

It must be noted, however, that many American judges and justices do participate with respect to judicial dialogue: both to train others and to educate themselves. Slaughter acknowledges that national and international judges are increasingly networking and aware of the role they play.  All this results to “[a] growing sense of participation in a common enterprise, backed up by the growing opportunities for face-to-face meeting among judges.”  where “judicial networks” are forged. Thus, a global community of courts is created due to increased communication between them.  Slaughter further noted that:

[W]here as a presumption of a world of separate sovereigns mandates courtesy and periodic deference between them, the presumption of an integrated system [where judicial dialogue is commonplace] takes mutual respect for granted and focuses instead on how well that system works. It is a shift that is likely to result in more dialogue but less deference.

This process which is more interactive provides for an opening to foreign materials as persuasive aid. In April 2016, five judges of the Supreme Court of Canada traveled to Washington DC, met top U.S. judges at the Canadian Embassy, and sat in on a United States Supreme Court hearing. Justice McLachlin who was on the trip stated that “Canadian jurists travel not just as a way to convey the Canadian way of doing things, or to compare administrative notes, but also to get a deeper understanding of a problem that sometimes aids in the development of Canadian law.”

In addition, there are numerous opportunities for international judicial education and exchanges. Slaughter writes “a flood of foundation and government funding for judicial seminars, training programs, and educational materials under the banner of ‘rule of law’ programs has significantly expanded the opportunities for cross-fertilization.”

For instance, the Federal Judicial Center, the research and education agency of the federal judicial system provides information about federal courts to officials of foreign judicial systems and to acquire information about foreign judicial systems that will help the Center perform its other missions. Other organizations such as the International Organization for Judicial Training (IOJT), and the International Association of Women Judges (IAWJ) regularly hold conferences that provide opportunities for judges to meet colleagues from other nations. There are also a variety of exchanges programs with foreign countries in the U.S such as the Department of State International Visitor’s Leadership program (IVLP).

In conclusion, it is worth noting that courts are called to apply global and regional human rights norms and standards. Invariably, these courts decide these cases on global rules. On the other hand, courts can also use foreign case law as a precedent or basis for their legal reasoning. As illustrated above, there are two approaches to judicial globalization: a defensive attitude of the domestic legal system, and acceptance of foreign law. In essence, there is a general agreement that the idea of globalization includes judicial globalization.

The Constitutional Court of South Africa: The role and impact of international law on constitutional adjudication

Transformative constitutionalism and the 1996 South African Constitution

South Africa’s adoption of its 1996 Constitution after the end of Apartheid led to the ushering of one of the most progressive constitutions in the world.  The Constitution, Act 108 of 1996, was signed into law by President Mandela on December 10, 1996.  The judicial systems as provided for in section 166 of the Constitution include: the Constitutional Court; the Supreme Court of Appeals; the High Courts; the Magistrates’ Courts; and any other court established in terms of an Act of Parliament. According to section 167 of the Constitution, the Constitutional Court is the final arbiter in constitutional matters and has the power to decide the constitutionality of legislation and executive conduct.

One of the key objectives of the Constitution is the transformation of South African society.  Klare, who coined the concept ‘transformative constitutionalism,’ defines it as:

A long-term project of constitutional enactment, interpretation, and enforcement committed (not in insolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.

The elements of transformation include the “dismantling of a plethora of racist and sexist laws and institutions, redressing their legacy, healing the divisions of the past and building a new society committed to social justice and the improvement in the quality of people’s lives.”  Bunlender AJ wrote in Rates Action Group v City of Cape Town:

Ours is a transformative constitution…. Whatever the position may be in the USA or other countries, that is not the purpose of our Constitution. Our Constitution provides a mandate, a framework and to some extent a blueprint for the transformation of our society from its racist and unequal past to a society in which all can live with dignity.

Its Bill of Rights chapter is a cornerstone of democracy in South Africa and serves as ‘post-liberal’ manifesto for a post-apartheid country.  It enshrines the rights of all people in the country and affirms the democratic values of human dignity, equality and freedom.  It includes civil and political rights, as well as a comprehensive set of social, economic and cultural rights all enforceable by the courts.  Section 7(2) of the Constitution further obligates all branches of government to respect, protect, promote and fulfill the rights in the Bills of Rights. According to Justice Emeritus Albie Sachs, the Bill of Rights serves “[a] democratic universalistic, caring and aspirationally egalitarian society that embraces everyone and accepts people for who they are.”

The Bill of Rights is modeled on international, regional, and sub-regional human rights conventions. In terms of interpretation of the Bill of Rights, international and foreign laws serve as an aid. Section 39 (1) of the 1996 Constitution declares that:

[w]hen interpreting the Bill of Rights, a court, tribunal or forum—

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

 (b) must consider international law; and

 (c) may consider foreign law.

Within this context, it is important to differentiate between international law and foreign domestic law as the Constitution made a clear distinction. International law binds states based on the acceptance by specific states through becoming parties to treaties.  Declarations and resolutions are considered soft law, and therefore non-binding. Other sources include: relevant norms that have become a rule of customary law accepted as “general practice accepted as law;”  jus cogens (peremptory norms accepted and recognized by the community of states as a whole);  and obligations erga omnes (which are obligations owe to the international community as a whole).The International Court of Justice (ICJ) has accepted the right to self-determination  and protection from slavery and racial discrimination to constitute obligation erga omnes.  Dugard has described judicial reliance on international human rights as ‘common place’.

Foreign law refers to the law (such as legislation and case-law) of other states. The Constitution permits the consideration of foreign law. The drafters foresaw the importance of international law and the pivotal role that foreign sources would play in the development of its young jurisprudence. Hence, the specific provisions above dealing with this issue. The Constitutional Court relies freely on both international and foreign law sources and precedents. 

Application of international law

The Constitution ensures that South African laws are interpreted to comply with international law, particularly in the field of human rights. This is in conjunction with section 233 which states that “[w]hen interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.” This section requires courts to be guided by international norms in their interpretation of the constitution.  Accordingly, the Constitutional Court has shown a willingness to be guided by international human rights law. In an early decision involving the constitutionality of the death penalty, the then President of the Constitutional Court made the following statement:

In the context of s 35(1), public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within the [the Bill of Rights] [which] can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights, the Inter-American Commission on Human Rights, the European Commission on Human Rights, and the European Court of Human Rights and, in appropriate cases, reports of speciali[z]ed agencies such as the International Labor Organi[z]ation, may provide guidance as to the correct interpretation of particular provisions of [the Bill of Rights]. 

Thus, the Court has interpreted the term ‘international law’ to encompass both treaties and non-binding treaties. For instance, in addition to the CRC and the African Charter to which South Africa is a party, the Court can use treaties that it has signed but not ratified, as well as treaties that the country is not eligible such as the European Convention on Human Rights. They have on occasions considered non-binding soft law instruments such as declarations and General Comments of the U.N treaty bodies, and U.N reports on human rights matters.

In S v Williams, the Constitutional Court found that corporal punishment was unconstitutional on the ground that it violated the Constitution’s prohibition of cruel, inhuman or degrading treatment, or punishment. The Court arrived at this determination by examining the jurisprudence of the UN Human Rights Committee and the European Commission and Court on human rights after acknowledging that “[i]n common with many rights entrenched in the Constitution, the wording of the section conforms to a large extent with most international human rights instruments.”  The Court has a tendency of referring to the jurisprudence of the European Court of Human Rights.  It is evident that the Constitutional Court has adopted quite a liberal approach by also relying on non-binding instruments.

The Constitutional Court of South Africa: The use of foreign law on constitutional adjudication

Constitutional developments regarding the use of foreign law

As noted in Part II of this symposium, in terms of interpretation of the Bill of Rights in the 1996 Constitution of South Africa, international and foreign laws serve as an aid. Section 39 (1) of the 1996 Constitution declares that:

[w]hen interpreting the Bill of Rights, a court, tribunal or forum—

(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

 (b) must consider international law; and

 (c) may consider foreign law.

Foreign law refers to the law (such as legislation and case-law) of other states. The Constitution permits the consideration of foreign law.

The Constitutional Court frequently uses comparative foreign case law. Due to the legal tradition and culture, South African lawyers have and are still schooled in comparative law.  The Court mostly follows Anglo-American tradition with the most prominent countries including Canada, the US and England, and hardly referred to African jurisprudence. Germany is the only non-common law country that the courts cite due to educational exchange between the two countries. These different traditions were of great importance while they were developing an indigenous jurisprudence.

As noted in the introduction:

There is a recognition that globalization is changing the contours of law and creating new legal institutions and norms. The need for global taxonomy is more important especially in light of legal globalization in which knowledge transfer is needed in not only different areas of a legal system but across different legal systems.

The concept of path dependence is primarily been used in comparative-historical analyses of the development and persistence of institutions, in this instance legal systems.  In terms of legal transplant, path dependence will determine whether its successful or not. The Constitutional Court in Sanderson case expressed its concerns in this regard:

Comparative research is generally valuable and is all the more so when dealing with problems new to our jurisprudence but well developed in mature constitutional democracies…. Nevertheless, the use of foreign precedent requires circumspection and acknowledgment that transplants require careful management. Thus, for example, one should not resort to the Barker test or the Morin approach without recognizing that our society and our criminal justice system differ from those in North America.

There is an ongoing debate about the proper use of foreign and comparative laws and the costs and benefits of uncritically following decisions of other courts. Judges are categorized into two groups depending on how they use foreign and international law in their decisions. First, judges are labeled as ‘too liberal’ (for those citing extensive comparative research) and proceeding from judicial activism to “judicial adventurism.”  Others are ‘too conservative’ if they show extreme caution to foreign sources. In Fose v Minister of Safety and Security, Krieger J questioned the comparative approach adopted by Ackermann J in arriving at constitutional remedies by examining the positions in the US, Canada, Britain, Trinidad and Tobago, New Zealand, and Ireland. He stated:

In my respectful view, it is neither necessary nor prudent to range as wide as does Ackermann J in his judgement. I decline to engage in a debate about the merits or otherwise of remedies devised by jurisdictions whose common law relating to remedies for civil wrongs bears no resemblance to ours and whose constitutional provisions have but a passing similarity to our section 7(4)(a) of the interim Constitution.

Ackermann J’s criticism points to the question of whom do South African judges write their opinion for? Who is the addressee of the judicial decisions’? Who is their audience? Other judges? Political actors in their national system, academia, the media, the global arena? In the case of South Africa, the audience is all these groups resulting in the style of judicial decisions which is highly argumentative.

The use of foreign law in judgments: Selected cases

It is impossible to examine all the judicial decisions that have invoked foreign case law in South African jurisprudence.  From its first judgments in 1995 until the end of 2011 the Court handed down approximately 429 judgments. More than half (54 percent) of these judgments cited foreign case law, thus giving us a total of 224 judgments. These judgments cited, give or take a few, 3047 foreign cases, Canada (879 citations), the United States of America (757 citations), the United Kingdom (494 citations); Germany (118 citations), and Zimbabwe (80 citations). The discussion in this section does not do justice to the variety of case law on this topic. However, the following cases will provide a glimpse of the practicability of judicial globalization in South Africa in several respects: because of their frequent reference to other foreign case law, and also because they demonstrate how human rights issues can result to dialogue between courts of various nations in dealing with the same question.

i.          S v Makwanyane and Another

The case of Makwanyane was heard at the first sitting of the Constitutional Court on February 15, 1995.  The context within which this decision was made should be recognized: apartheid just ended and there still existed the apartheid courts.  Thus, in Makwanyane the Constitutional Court held that capital punishment was inconsistent with the ideals and provisions of the ‘interim Constitution.’ The recognition of the rights to life  and dignity  must be the benchmark in all actions of the state.   The Court noted that there is no distinction between extradition or deportation where the form of the punishment is contrary to these rights.  The Constitutional Court arrived at this decision by examining the decisions of Campbell and Cosans v United Kingdom and Tyrer v United Kingdom  extensively.

ii.         Mohamed and Another v President of the RSA and Others 

The case of Mohamed dealt with an illegal immigrant accused of serious crimes and charged with capital offenses. The United States sought his removal from South Africa. Mohamed was sought for prosecution in the US relating to the bombing of the US Embassy in Dar es Salaam, Tanzania, in which 11 people were killed and 85 injured.  South African officials handed him over to the US without requesting an assurance that he would not be subjected to the death penalty.  The court reaffirmed its finding in Makwanyane that the death penalty is unconstitutional in all circumstances.  The Court held that the rights to life, human dignity and the right are not treated in a cruel and inhuman way “[w]ere not qualified by other principles of justice. There are no exceptions to the protection of these rights.”

In its order, the Court ordered that Mohamed’s removal to the US had been unlawful. The Court ordered that its judgment be sent to the court trying Mohamed in the US. The substance of the Constitutional Court’s decision was provided to the jurors as a mitigating factor against imposing the death penalty.  Mohamed was ultimately sentenced to life imprisonment.

The Constitution prohibits the state, ‘knowingly to participate, directly or indirectly, in any way in imposing or facilitating the imposition of such punishment’.  The decisions of the European Court of Human Rights were followed in finding a person might not be deported to a country in which there was a real risk that he might be subjected to cruel, inhuman, or degrading treatment.

iii.        Glober v Nasper

Grobler, a 33-year-old secretary employed by Nasionale Tydskrifte Ltd (a subsidiary of Media24 Ltd),   alleged that over a period of six months in 1999, she was sexually harassed several times by a trainee manager from the same company. These were described as ‘the lift incident’,  ‘the lanbousaal incident’,  ‘the coffee jar incident’,  ‘finger biting incident and’,  and ‘the flat incident’.  The learned judge in the trial court rejected the version of the second appellant (the trainee manager) that there had been a romantic relationship between him and the respondent. The judge also found that Grobler’s “chronic emotional problems” or “severe shock, anger, anguish, fear and anxiety; humiliation and severe psychological and psychiatric trauma” were the result of the sexual harassment to which she was subjected.

The judge then proceeded to hold the first appellant, the employer of the second appellant, vicariously liable for his actions.  He justified the decision on policy considerations and the obligation placed on the courts to develop the common law in accordance with the values of the constitution. He came to this conclusion after a comprehensive discussion on the common law as to vicarious liability and recent developments thereof in the United States, Canada, United Kingdom, Austria and New Zealand.  His opinion was therefore that the company’s employment of the harasser increased or created the incidence of harassment, as the latter was employed in a position of authority over his victim.

The place of South African jurisprudence

South African legal system continues to gain momentum in judicial globalization based on its constitutional dispensation and the willingness of South African judges to engage in judicial global debates. According to Lourens du Plessi, South African Constitutional Court judges are “comparative constitutional enthusiasts” and “universalists” pursuing actively the constitutionalization of international law.”  While the South African Courts have drawn heavily from foreign sources in developing its jurisprudence, its own decisions have also led to the development of a distinctly South African jurisprudence that has come of age and now guides others as well. As Judge Guido Calabresi of the United States Court of Appeals, Second Circuit, has observed, such “constitutional offspring” can be very useful stating that “[w]ise parents do not hesitate to learn from their children”.   For instance, in the Makwanyane case, the Constitutional Court held that the death penalty was unconstitutional in South Africa in 1995. In reaching that conclusion, the Court conducted a wide-ranging review of international and foreign comparative law, including a number of Canadian cases.  The Court turned to international and foreign law to support its conclusion.  A few years later in 2001, the Supreme Court of Canada, held in Minister of Justice v Burns that the Government of Canada has an obligation to seek assurances before removing a suspect to a country that still has the death penalty. The Supreme Court of Canada endorsed the views expressed in the South African case of Makwanyane departing from its earlier decision in Kindler v Canada (Minister of Justice) and Reference re Ng Extradition (Canada)  in which, the Court held that Canada did not have an obligation to seek assurance before extraditing a person.

It is also observed that South African jurisprudence, particularly its socio-economic rights jurisprudence was instrument in framing article 8(4) of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. According to Porter, “[w]ording was taken from the Grootboom decision of the South African Constitutional Court, where that Court first described its approach to reasonableness review in relation to the right of access to adequate housing in article 26 of the South African Constitution.”  In further illustrating how South African jurisprudence is becoming more useful, he adds that

[t]he incorporation of the wording from the Grootboom judgment suggests, as does the drafting history, that just as the South African Constitutional Court has incorporated jurisprudence from the CESCR into its own domestic jurisprudence, so has South African jurisprudence now informed the text of an international human rights instrument.

Overall, the utilization of international and foreign law has led to the evolution of South Africa from “borrower” status  from which it built its own indigenous jurisprudence; to elevating to “lender” status in the global legal comity.  Thus, South Africa’s transformative human rights jurisprudence has made a significant contribution to international human rights literature that is cited by foreign courts such as the Canadian Supreme Court as well as contributing to international human rights law-making. Such recognition is noteworthy based on the constitutional value placed on international and foreign law in the South African Constitution and the subsequent interpretation given by the courts.

Foreign and international law: Expanding horizons in The Gambia

Judges have an active role in the global legalization process of setting judicial standards; developing and borrowing general principles; and interpreting statutes in conformity with international and regional human rights instruments as noted in Part I of this series.

Increasingly courts are called on to apply global standards and norms. Therefore, courts decide cases based on global rules. On the other hand, courts use foreign case law as precedents or for argumentation in their legal reasoning.

As illustrated in Part II and Part III of this symposium, the explicit use of international law and foreign decisions is found in the Constitution of South Africa, which allows the Constitutional Court to use both international and foreign law to determine the substantive meaning of its Bill of Rights. South African judges have been comparatively open to foreign law in rendering their decisions. As can be seen, comparative law played a major role in the development of South Africa’s jurisprudence. Evident from following evolving transnational consensus to citing foreign law or distinguishing the position of South African from another foreign jurisdiction.

The 1997 Constitution of The Gambia does not mandate the Supreme Court to use international law to interpret various provisions of the Constitution. In essence, there is no enforceable provision that specifically allows the courts to rely on international treaties to which The Gambia is a party in interpreting the fundamental rights and freedoms contained in the Constitutions.

Section 216(3) of the Constitution obligates the state to be guided by international human rights instruments in making policies for the protection of fundamental rights and freedoms. Section 211(b) further empowers the courts to have regard to these state policies in interpreting any laws based on them. Section 219(c) and (d) of the Constitution also provide that:

The State shall endeavour to ensure that in international relations it:

(a) promotes and protects the interest of The Gambia;

(b) seeks the establishment of a just and equitable international economic and social order;

(c) fosters respect for international law, treaty obligations and the settlement of international disputes by peaceful means; and

(d) is guided by the principles and goals of international and regional organisations of which The Gambia is a signatory.

As noted by Nabaneh, these provisions “as directive principles of state policy, do not confer legal rights and are not enforceable, but all organs of government should be ‘guided by and observe them.’  There is a strong presumption in common law systems that statutes and the common law will be read so as to be compatible with international law, save where the provisions of a statute or common law clearly preclude such an interpretation. This principle was specifically recognized in Gambian law by Moshood Adio J, on behalf of the pre-1994 Supreme Court (now the High Court), in the case of Abdulrasheed Mohamed v. the State (Unreported). This approach is also in keeping with the principle of Gambian constitutional interpretation set out by the Privy Council in the case of Attorney General v. Jobe (No 2) [1960-1963] GLR 226, whereby the Constitution, ‘in particular that part of it which protects and entrenches fundamental rights and freedoms to which persons in the State are to be entitled, is to be given a generous and purposive construction.’

While the Gambian Supreme Court has been known to cite foreign decisions from other common law jurisdictions, it is important that the Constitution has an enforceable provision that allows the courts to interpret constitutional provisions progressively. The provision should clearly mandate that the interpretation of constitutional provisions, especially the fundamental human rights chapter must be enlightened by the consideration of international law. It is evident that since the establishment of the South African Constitutional Court in 1994, it has become fearless in citing foreign precedents in its reasoning. The extensive foreign cases cited deal mainly with human rights issues. This points to the confidence of the Court in its independence and its role in judicial globalization. The jurisprudence of the South African Constitution serves as a model of the role judges can play in facilitating global judicial and constitutional dialogue. As in the case of South Africa, acceptance of the role of both international and foreign law in constitutional adjudication coexists peacefully in the uniqueness of their constitutional identity.

Indeed, courts in The Gambia have extensively utilized foreign authorities in their citations. But they have largely shied away from directly applying international law and subsequently, developing inconsistent practice in relation to international law. However, given that The Gambia is a party to international, regional, and sub-regional bodies, the courts need to decide cases based on global law and standards. Regardless of the dualist approach, the national legal system is bound to conform to global human rights standards.

There can be no doubt that it will be helpful for our courts to consider the approach of other jurisdictions, while been well attuned to differences among legal systems. As noted by the Constitutional Court of South Africa in the Sanderson case “the use of foreign precedent requires circumspection and acknowledgment that transplants require careful management.”  In developing an indigenous jurisprudence after a dictatorship, the Gambian judiciary must be willing to look at international human rights law and foreign law. The Gambian courts should have a strong incentive to look to other democracies in light of its recent history. As a comparativist enthusiast, The Gambia’s effort in consolidating democracy must endeavor to build a solid foundation to move confidently in the future. Our transition from an authoritarian regime to a democratic one is in part looking at external foreign sources of law, such as international law and foreign caselaw: the expansive repository of rules and standards. This is particularly important if international human rights law is to have a prominent place in the governance of the country. Justice Ginsburg has explained that, in her view:

comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world.

In The Gambia’s subsequent constitution building, comparative law should play a major role in the development of The Gambia.  A willingness to look at foreign law and international law is “no impediment to developing and maintaining distinctive legal approaches that respond to the particular history, values, and needs of a nation.”  As noted by Kozyris:

What comparativists share . . . is a passion for looking beyond, an empathy for differences but also for similarities, a faith in the self-transformative task of learning, and an interest in the form of knowledge itself.

It is time we join the global conversation.