When is more more? The proliferation of international courts and their impact on the rule of law in Africa

Abstract

ABSTRACTAfrica has witnessed a proliferation of international human rights courts as well as criminal courts at different layers of governance – globally operating courts, regional courts as well as sub-regional courts – which suggests that analyzing this phenomenon through the prism of multi-level governance (MLG) will yield interesting insights into the workings of the rule of law in an era of global legal pluralism. One might be inclined to conclude that the more courts there are, the better for the rule of law. However, the dispersion of judicial authority actually has a rather ambivalent impact on the rule of law. While MLG does facilitate forum-shopping, whether or not the simultaneous availability of different fora weakens or strengthens the rule of law depends on who is exploiting this availability. Secondly, legitimacy deficits of courts at one level of governance will spur judicial institution-building at other levels of governance. Third, MLG almost always produces norm collisions; however, the evidence also shows that the involvement of an ‘objective’ third party might resolve these norm collisions. Fourth, in order for courts in MLG to function as a system of checks and balances, they will need the support of compliance constituencies with relatively homogeneous preferences.