from the executive, administrative or legislative
branches of government, which will often be parties
before the courts.
(5) Courts must be able to fulfil their functions without
fear: courts cannot act independently if they face
retribution for judgments unfavourable to private
parties or government.

1. INTRODUCTION: JUDICIAL
INDEPENDENCE IN
CONSTITUTIONAL DEMOCRACY
The independence of the judiciary is as much an essential
element of constitutional democracy as human rights and the
rule of law that the courts are mandated to protect. The
United Nations General Assembly recognized this link in the
2004 declaration on the “essential elements of democracy”.4
The discussion of international law on judicial independence
in this Briefing Paper is anchored in an understanding of the
essential functions of courts in constitutional democracy.
Courts in constitutional democracies serve two functions.
First, the judiciary is the ultimate guarantor of human rights in
a democratic system. Human rights and in particular political
rights enjoyed by all on equal terms are crucial to democratic
government, because they ensure that the people can freely
express their political will and preferences. The link between
the people’s free expression of popular will and democratic
government is expressed in Art. 21(3) of the Universal
Declaration of Human Rights (UDHR).5 Second, the judiciary in
a democracy must secure the rule of law by ensuring that the
conduct of the executive and administrative branches of
government is consistent with previously enacted laws, with
rights, and with the constitution. In order to discharge both
functions, courts must enjoy judicial independence.
1.1.

The principles of this working definition ensure that two
functions of judicial independence in a constitutional
democracy – to guarantee human rights and the rule of law –
can be fulfilled.
The UN Basic Principles on the Independence of the Judiciary
bring these elements of judicial independence together in a
succinct definition:8
The judiciary shall decide matters before them impartially,
on the basis of facts and in accordance with the law,
without
any
restrictions,
improper
influences,
inducements, pressures, threats or interferences, direct
or indirect, from any quarter or for any reason.
In addition, constitutional democracies around the world have
encoded versions of this working definition in domestic
constitutions. One example is the South African Constitution,
which provides (Art. 165(2)):

WORKING DEFINITION OF JUDICIAL
INDEPENDENCE

Article 14 of the International Covenant on Civil and Political
Rights (ICCPR) is the “hard” law basis of the international law
definition of judicial independence.6 The article states that all
persons are equal before courts and tribunals, and that all
persons are entitled to a fair and public hearing before a
competent, independent and impartial tribunal (see further
section 2). The United Nations Human Rights Committee
provides an authoritative interpretation of the article in
General Comment No. 32,7 which yields the following working
definition of judicial independence:
(1) Courts must treat all parties impartially without
discrimination.
(2) Courts must display no bias or favour towards
particular parties.
(3) Courts must not pre-judge cases (i.e., there is no
prejudice).
(4) Courts must be politically independent; they must not
be beholden to, or subject to manipulation or influence

The courts are independent and subject only to the
Constitution and the law, which they must apply
impartially and without fear, favour or prejudice.
The Kenyan Constitution emphasises fidelity to the
Constitution and the law and prohibits interference in the
work of the courts (Art. 160):
In the exercise of judicial authority, the Judiciary … shall
be subject only to this Constitution and the law and shall
not be subject to the control or direction of any person or
authority.
The 2012 Egyptian Constitution (Art. 74)9 recognized these
requirements in principle. The provision is identical to Art. 65
of the 1971 Egyptian Constitution:
The independence and immunity of the judiciary are two
basic guarantees to safeguard rights and freedoms.

8
4

Adopted 20 December 2004, the resolution was officially published in
2005. See:
http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/59/201&Lang
=E. See also DRI, International Consensus: Essential Elements of
Democracy.
5
Universal Declaration of Human Rights, 10 December 1948, General
Assembly resolution 217 A(III), (UDHR).
6
See in this regard, DRI and The Carter Center, Strengthening International
Law to Support Democratic Government and Genuine Elections (2012), p.
13.
7
UN Human Rights Committee, General Comment No. 32, CCPR/C/GC/32,
23 August 2007.

2

UN Basic Principles on the Independence of the Judiciary, adopted by the
Seventh UN Congress on the Prevention of Crime and the Treatment of
Offenders, Milan 26 August - 6 September 1985, endorsed by General
Assembly resolutions 40/32, 29 November 1985 and 40/146, 13 December
1985, para 2.
9
The 2012 Egyptian Constitution was suspended on 8 July 2013, and at the
time of writing is in the process of being amended. A 10-member technical
committee, composed of six judges, one professor and three retired
academics, was appointed by the interim government to propose changes
to the 2012 Constitution. These proposals were published on 20 August
2013. On 1 September 2013 a presidential decree called for the
establishment of a 50-member committee to prepare a complete draft
Constitution.

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