Can Democratic Principles Protect High Courts from Partisan Backlash? Public Reactions to the Kenyan Supreme Court's Role in the 2017 Election Crisis

Author(s):  
Brandon L. Bartels ◽  
Jeremy Horowitz ◽  
Eric Kramon
2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Jeremy Sarkin

This article explores the role of the African Commission on Human and Peoples’ Rights and the role it plays regarding human rights in individual country situations in Africa. It specifically examines the extent to which it has been able to advance a human rights agenda in countries with long-standing human rights problems. The article uses Swaziland/ eSwatini as a lens to examine the matter, because of the longstanding problems that exist in that country. This is done to indicate how the institution works over time on a country’s human rights problems. The article examines a range of institutional structural matters to establish how these issues affect the role of the Commission in its work. The article examines the way in which the Commission uses its various tools, including its communications, the state reporting processes, fact-finding visits, and resolutions, to determine whether those tools are being used effectively. The article examines how the Commission’s processes issues also affect it work. Issues examined negatively affecting the Commission are examined, including problems with the status of its resolutions and communications, limited compliance with its outcomes, and inadequate state cooperation. Reforms necessary to enhance to role and functions of the Commission are surveyed to determine how the institution could become more effective. The African Union’s (AU|) Kagame Report on AU reform is briefly reviewed to examine the limited view and focus of AU reform processes and why AU reform ought to focus on enhancing human rights compliance. The article makes various suggestions on necessary institutional reforms but also as far as the African Commission’s procedures and methods of work to allow it to have a far more effective role in the promotion and protection of human rights on the continent. It is noted that political will by the AU and African states is the largest obstacle to giving the Commission the necessary independence, support and assistance that it needs to play the role in Africa that it should.


2018 ◽  
Author(s):  
Nancy J. King ◽  
Michael Heise

Scholarly and public debates about criminal appeals have largely taken place in an empirical vacuum. This study builds on our prior empirical work exploring defense-initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploiting data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the United States Court of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of non-capital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of defense representation, oral argument and opinion type, as well judicial selection, merits review, and relief. Findings include a rate of success for state prosecutor appeals about four times greater than that for defense appeals (roughly 40% of appeals filed compared to 10%). The likelihood of success for state prosecutor-appellants appeared unrelated to the type of crime, claim, or defense counsel, whether review was mandatory or discretionary, or whether the appellate bench was selected by election rather than appointment. State high courts, unlike intermediate courts, did not decide these appeals under conditions of drastic asymmetry. Of discretionary criminal appeals reviewed on the merits by state high courts, 41% were prosecutor appeals. In federal courts, prosecutors voluntarily dismissed more than half the appeals they filed, but were significantly less likely to withdraw appeals from judgments of acquittal and new trial orders after the verdict than to withdraw appeals challenging other orders. Among appeals decided on the merits, federal prosecutors were significantly more likely to lose when facing a federal defender as an adversary compared to a CJA panel attorney.


2019 ◽  
Vol 12 (2-2019) ◽  
pp. 419-433
Author(s):  
Stefanie Vedder

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.


2010 ◽  
Vol 27 (2) ◽  
pp. 1-27
Author(s):  
Malik Mufti

This articles argues (a) that democratic discourse has already become hegemonic among mainstream Islamist movements in Turkey and the Arab world; (b) that while this development originated in tactical calculations, it constitutes a consequential transformation in Islamist political thought; and (c) that this transformation, in turn, raises critical questions about the interaction of religion and democracy with which contemporary Islamists have not yet grappled adequately but which were anticipated by medieval philosophers such as al-Farabi and Ibn Rushd. The argument is laid out through an analysis (based on textual sources and interviews) of key decisions on electoral participation made by Turkey’s AK Party and the Muslim Brotherhoods in Egypt, Jordan, and Syria. Particular attention is focused on these movements’ gradual embrace of three key democratic principles: pluralism, the people as the source of political authority, and the legitimacy of such procedural mechanisms as multiple parties and regular elections.


2020 ◽  
Vol 30 (2) ◽  
pp. 129-156
Author(s):  
Irina Sirotkina

The period from the late 1950s to the mid-1960s in the Soviet Union was known as the “Thaw,” a political era that fostered hopes of restoring the rule of law and democracy to the country. In that period cybernetics came to symbolize both scientific progress and social change. The Soviet intelligentsia had survived the hardship of Stalinist repression and now regarded the new discipline, which brought together the natural sciences and the human sciences, as a pathway to building a freer and more equal society. After decades of domination by Pavlovian doctrine, a paradigm shift was under way in physiology and psychology. Cybernetics reinforced the new paradigm, which put forward ideas of purposive behavior and self-organization in living and non-living systems. The conditioned reflex and a simplistic one-to-one view of connections in the nervous system gave way to more sophisticated and complex models, which could be formalized mathematically. Previous models of control in living organisms were mostly hierarchical and included top-down control of peripheral movement by the motor centers. The new models supplemented this picture with feedback commands from the periphery to the center. By the time cybernetics had made its appearance in the Soviet Union, new models of control had already been formulated in physiology by Nikolay Bernstein (1896– 1966). He termed the feedback from afferent signals “sensorial corrections,” meaning that they play an important part in adapting central control to the changing situation at the periphery of movement. The new paradigm emphasized horizontal connections over vertical ones, and new models took hold based on less “totalitarian” and more “democratic” principles, such as the idea of automatic or autonomous functioning of intermediate centers, the mathematical concept of well-organized functions, the theory of “the collective behavior of automata,” etc. This line of research was carried out in the USSR as well as abroad by Bernstein’s students and followers who formed the Moscow School of Motor Control. The author argues that this preference for less hierarchical models was one expression of the Thaw’s trend toward liberalization of life within the USSR and greater involvement in international politics.


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