Can the courts protect democracy in Africa?

Professor Nic Cheeseman asks whether judges can defend the rule of law in the face of intense political pressure?

Source: Can the courts protect democracy in Africa?

Kenya’s deputy chief justice Philomena Mwilu (L) presides during a ruling laying out the reasons for annulling presidential election in Kenya’s Supreme Court in Nairobi, Kenya 20 September 2017. REUTERS/Baz Ratner

Judges have hit the headlines this month for upholding the rule of law in the most difficult circumstances. Against a backdrop of growing concern about democratic backsliding during the coronavirus pandemic, the willingness of the judiciary to protect the constitution in the face of intense political pressure is a source of hope and inspiration.

In Kenya, five high court judges ruled that the controversial constitutional amendments proposed by the government were irregular, illegal and unconstitutional. As a result, plans to introduce the changes ahead of the 2022 general elections have been undermined. In Zimbabwe, the high court ruled that the country’s chief justice, Luke Malaba, had to retire because the extension of his tenure by the president was illegal. Now a key ally of the president can no longer rule in his favour.

These events naturally raised hopes that the judiciary might inspire a ‘much needed consolidation of constitutionalism and democracy’. But judges don’t operate in a vacuum, and past experience tells us that their ability to do this depends on the role played by civil society groups, the security forces and other state institutions – and having a democratic constitution to begin with.

The important of precedence

The recent decisions in Kenya and Zimbabwe came against the backdrop of a number of landmark judicial rulings in recent years. Most famously, Kenya’s supreme court became the first judicial body in Africa to nullify the election victory of a sitting president following a disputed poll in August 2017. Malawi’s constitutional court followed suit in in 2020, when it negated the victory of President Peter Mutharika following the infamous ‘Tip-Ex’ election of 2019.

These two cases perfectly illustrate the significance of legal precedent. When I was in Lilongwe listening to the constitutional court’s verdict being read out live on radio, I was struck by how frequently the Malawian court cited the Kenyan judgement as a key legal precedent, and how clearly it sought to follow in its footsteps. Without ‘Kenya 2017’, we might not have had ‘Malawi 2020’.

The recent decisions in Kenya and Zimbabwe are important in their own right, but also have broader implications for future jurisprudence.

Against this backdrop, there is now a real risk that recent judicial decisions will either be overturned through the application of intense political pressure – both governments immediately launched appeals – or that ruling parties will seek to evade or modify the law to get their way.

This is best illustrated by the Building Bridges Imitative (BBI) in Kenya, which has been led by both President Kenyatta and Raila Odinga, a long-time opposition leader who became a government ally after the two men buried their differences with a ‘handshake’. According to Kenyatta and Raila, the BBI reforms would create a more inclusive and hence stable political system, by creating additional positions such as prime minister and strengthening devolution.

Against this, constitutional experts and civil society groups pointed out that the changes don’t address the excessive formal and informal powers of the presidency, and so do not solve the country’s most significant political problem. Worse still, many believe that reforms are really intended to create more lucrative government positions so that patronage can be used to prevent the broad alliance around Kenyatta and Raila from fragmenting ahead of general elections scheduled for 2022.

The judgement that BBI was introduced in an unconstitutional manner has curtailed these plans, and warded off the threat that the country could slide back towards a one-party state, with a bloated government and no effective opposition.

But it also may protect the constitution in the future. In particular, the invocation of the basic structure doctrine to argue that the right to “make or radically alter the fundamentals of a constitution – lay only with the primary constituent power, i.e., with ‘the People’”, will shape how future constitutional processes are managed. Similarly, the finding that presidents act unconstitutionally if they seek to pre-empt the “parliamentary initiated” and “popularly initiatives” processes stipulated in the constitution is hugely significant. Henceforth, neither Kenyatta nor any of his successors will be able to directly instigate constitutional changes.

Moreover, as in the past, Kenyan judges may have inspired their counterparts elsewhere on the continent: the Zimbabwe High Court delivered its own judgement just two days later.

Going beyond the judgements

The significance of legal precedent means that the recent focus on judges is understandable, but it nonetheless overlooks the critical role played by lawyers and civil society organisations. Judges have to be brave to rule against the government, but they can only do so if well-argued cases are brought before them – and that also takes bravery, energy and determination.

In Harare, the case against the chief justice was spearheaded by the Young Lawyers Association of Zimbabwe, described by Doug Coltart as “defence attorneys for the constitution and the rule of law”. By fighting an ‘epic and historical battle’ to demonstrate the illegality of government actions, the young lawyers followed in the footsteps of the Zimbabwean Lawyers for Human Rights, an organisation that has worked to ‘protect human rights through the observance of the rule of law’ for the last quarter of a century.

In Kenya, a number of petitions were launched against BBI by groups such as the Law Society of Kenya and Linda Katiba (Protect the Constitution). These were ultimately consolidated into one petition led by David Ndii, an outspoken government critic and former strategist for the opposition under the National Super Alliance (NASA). Prior to the high court’s judgement, many had lost hope of halting the BBI behemoth, which had sailed through the National Assembly and seemed likely to pass a national referendum – the main hurdle left before becoming law.

Without Ndii and his fellow petitioners, the high court would not have had the opportunity to protect the constitution.

Beware the backlash

Another risk of focussing too heavily on the judiciary is that it can be a weak institution that lacks a ‘purse or a sword’ and so depends on other intuitions to implement its decisions.

The response of government leaders to judicial defeat demonstrates this vulnerability only too well.

Ever since the nullification of the presidential election in Kenya in 2017, government hardliners have depicted judges as unprincipled activists pursuing their own agenda, in a malicious bid to mislead the public into thinking that they did not act in line with the law. As a number of Kenyans helpfully pointed out to me on Twitter after a poorly worded message, in a context in which judges regularly receive death threats, political language becomes a matter of life and death.

A similar attack on the judiciary is currently underway in Zimbabwe, where the minister of justice alleged – without evidence – that the judiciary is “captured by foreign forces”.

This reflects a bigger problem in Kenya and Zimbabwe, namely the failure of other supposedly democratic institutions to back up the judiciary. The nullification of the 2019 election in Malawi facilitated a transfer of power because the military refused to be deployed for political purposes, and a new chair of the electoral commission was determined to deliver a credible ‘fresh’ election. This did not happen in Kenya, where the lack of election reforms contributed to an opposition boycott and clashes with security forces.

Against this backdrop, there is now a real risk that recent judicial decisions will either be overturned through the application of intense political pressure – both governments immediately launched appeals – or that ruling parties will seek to evade or modify the law to get their way. Indeed, the introduction of new legislation to criminalise the opposition and legalise repression – in countries such as Uganda, Tanzania and Zimbabwe – represents perhaps the most fundamental threat of all to the redemptive power of judicial review.

After all, judges can only protect democracy if the law itself is democratic.