The Role of judicial lawmaking in enhancing judicial legitimacy: an African sub-regional court perspective
Kasyoka, Mutunga Phyllis
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This paper aims to establish a cogent understanding of the relationship between judicial lawmaking and legitimacy of African Regional Economic Community Courts (RECs). It undertakes this by broadening that previous understanding of legitimacy of International courts defined as "whose authority is perceived as justified." It asserts that previous conceptualization of legitimacy has impaired an appreciation of the necessity of judicial lawmaking in the development of human rights adjudication before the courts. The paper aims to lay down a theoretical underpinning for situations that necessitate the exercise of judicial lawmaking by an international court for the preservation of its legitimacy. It lays down a framework for identification of situations in which judicial lawmaking would enhance legitimacy. The first step is to establish whether the matter involves allegations of violations of core human rights obligator norms. If yes, then the exercise of judicial lawmaking to improve the procedural and substantive rules of the rule-interpreting institution will translate into preserving or enhancing its legitimacy. Where the IC ignores such issues its legitimacy is threatened. Where the matters do not involve violations of core human rights obligatory norms, any form of judicial lawmaking would likely lessen the courts legitimacy, as it would be espied to exercise authority that isn't its own.