Reflections on judicial cross-fertilisation in the adjudication of human rights and constitutional disputes in Africa: The case of Namibia

  • Kennedy Kariseb

As globalisation is taking its toll on the twenty-first century, economic and political integration has become central in meeting the demands of the global world. The same can be said of the legal profession. As economic and political differences are becoming increasingly blurred, so too are differences in law and legal practice generally. Legal systems, more so judiciaries are therefore increasingly under pressure to harmonise and alfign their laws and systems with trends and developments in other legal traditions. In Africa, especially in common-law jurisdictions, judiciaries are continuously in a process of judicial dialogue, by engaging with each other’s jurisprudence and legal material. Through systemic cross-judicial fertilisation and use of foreign judges in domestic legal systems, judiciaries in Africa are dialoguing. Namibia is an illustrious example of this process of cross-systemic judicial fertilisation, particularly in human rights and constitutional disputes. However, recent developments, beginning with the passage of Rule 130 of the Rules of the High Court of Namibia, are slowly stalling this process. This article is a reflection on the use, importance, and relevance of systemic cross-judicial fertilisation in Africa, with particular reference to Namibia. To this end, the article argues that judiciaries in Africa, more so in Namibia, need to encourage and strengthen the use of foreign law, though with caution, in domestic legal systems as a means to the emerging trend of harmonisation and universalism in laws legal practice and legal systems globally.

Keywords: Africa, comparative law, human rights, judicial cross-fertilisation, Namibia

Speculum Juris Volume 35
Issue : 
Issue 1