By co-opting apex courts, incumbents bent on regime survival can entrench themselves in power while maintaining what their citizens consider to be sham democracies.

To use the words of Joseph Stalin, “What matters is not who votes, but who counts the votes.” To this, one might add, “and controls the electoral commission and the top courts.”

The adage has applied in several recent African elections where citizens turned up to vote only to have their ballot tallies manipulated. The electoral commissions announced implausible results, which were immediately disputed. The aggrieved parties were told to “go to court” to seek redress, but judges dismissed their petitions and confirmed the favorable outcome for the incumbent who was duly inaugurated. Congratulations then flowed in from Africa and foreign leaders despite the well-documented electoral fraud. Recent elections in the Democratic Republic of the Congo (DRC), Zimbabwe, Egypt, Gabon, Sierra Leone, Madagascar, and Uganda all seemingly followed this trend. Notably in nearly every case, most opposition leaders refused to petition the courts citing bias.

The widespread politicization, corruption, and co-option of courts, electoral commissions, and other institutions is one reason why more than half of Africa’s 19 elections this year are likely to be largely perfunctory formalities where election results are known in advance. Only 5 of these 19 countries are ranked “free” on Freedom House’s annual index.

Courts are vitally important owing to their power to interpret the law and issue binding orders. When properly employed, they are the tip of the spear in the fight against illegality and extraconstitutional threats to democracy. Their independence is also critical to maintaining the impartiality and integrity of electoral commissions. When courts are co-opted, however, they can rubber-stamp illegalities, entrench impunity, and weaken other oversight institutions. Captured courts are a major instrument in the hands of regimes intent on subverting the checks and balances inherent in a democracy.

The Different Guises of Judicial Subservience

An Afrobarometer survey on judicial institutions found that courts are among the most distrusted institutions in Africa. Nearly half of respondents (43 percent) trusted the courts “not at all, or just a little.” Meanwhile, 33 percent believed that all or most judges and magistrates were corrupt, and 54 percent believed that obtaining assistance from courts was “difficult or very difficult.”

The tactics governments employ to control and co-opt courts vary greatly. Most African constitutions mandate the chief justice to lead the judiciary. In practice, real power lies with the justice minister and attorney general—trusted members of the executive, and often the ruling party. They exercise outsized influence on how judiciaries function, including budgets, administration, and even the types of cases they can hear.

Benin’s President Talon has provided a textbook example of how an executive can commandeer a once proudly independent judiciary—and dismantle democratic checks in the process. After Talon’s 2016 election opponent, Sébastien Ajavon, had been acquitted in a drug smuggling charge in 2018, Talon’s Minister of Justice Joseph Djogbénou spearheaded the creation of a new special court, la Cour de Répression des Infractions Économiques et du Terrorisme (CRIET), that retried and convicted Ajavon. CRIET was used again to charge Talon’s opponents after the disputed 2021 election, after which a CRIET judge resigned over undue political influence and was forced to flee the country for his safety. The judge, Essowé Batamoussi, later explained, “… that there are no magistrates over there [in the Porto Novo CRIET] but rather simple enforcement agents whose task is to format and sign the decisions that have been taken at the chancellery in order to confer judicial form and substance.”

The African Court on Human and Peoples’ Rights in Arusha has condemned CRIET’s rulings and ordered the conviction of Ajavon overturned. Instead, Talon appointed Djogbénou head of the country’s Constitutional Court. Talon has been able to depend on Djogbénou for favorable rulings such as validating obstacles to opposition parties’ ability to register and contest elections, leading to no-contest legislative races in 2019 and Talon’s reelection in 2021.

In Kenya, tenure for judges was only restored in 2010 by the new constitution. Even then, successive governments have intimidated judges in ways that have shaped judicial decisions.

Ruling party members of Parliament have urged Kenyan President William Ruto to implement a so-called “radical judicial surgery” to punish senior judges who have questioned the constitutionality of several policy proposals and ruled against them. The term “radical judicial surgery” refers to the period when the Mwai Kibaki administration accused nearly 100 senior judges and magistrates of corruption without evidence and ordered them to either resign in 2 weeks or face tribunals. Only five were reinstated after the exercise.

Targeted resignations of senior judges have occurred in Angola, Equatorial Guinea, Guinea, Mozambique, Nigeria, South Sudan, Sudan, Tanzania, Uganda, and Zimbabwe in recent years, to name a few. In Tunisia, President Kaïs Saïed  sacked 57 senior judges in 2022 in what many called a “constitutional coup.” Equatorial Guinea’s 81-year old leader, Teodoro Obiang, holds the official title of “first magistrate” with exclusive power to appoint and fire judges. Similar powers are vested in 91-year-old Cameroonian President Paul Biya and South Sudan’s Salva Kiir. In 2020, the East African Court of Justice ordered Kiir to reinstate 14 judges he fired in 2017 for demanding better working conditions and independence—an order with which he has yet to comply.

South Africa’s groundbreaking Judicial Commission of Inquiry into Allegations of State Capture found that the deliberate failure by state prosecutors to prosecute graft made it possible for private interests to gain undue influence over sensitive state institutions. In other cases, state prosecutors simply withdraw charges, ostensibly due to lack of evidence. This occurred in Uganda in 2023 when the Director of Public Prosecutions instructed state attorneys to withdraw charges against the President’s son, General Muhoozi Kainerugaba. He had been charged with disobedience of statutory duty and common nuisance for engaging in political campaigns contrary to standing rules forbidding serving officers from such activity.

In other cases, governments use a little-known but powerful instrument called a nolle prosequi, which empowers the state’s chief legal officer to withdraw any matter before any court. Nearly all former British colonies retain this colonial relic in their lawbooks.

Control of judicial budgets is yet another way governments keep courts on a tight leash. In West Africa, Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, Equatorial Guinea, Guinea Bissau, Mali, Mauritania, Niger, and Togo require the judicial branch to submit their budgets for integration into the government budget, with no final say over appropriations.

Executives in many African countries control judicial appointments with little oversight. Botswana, the Seychelles, and South Africa are notable exceptions. In South Africa, the power to appoint is ceremonial as the candidates are screened and nominated by the Judicial Service Commission. The president cannot make appointments outside these nominations. In other countries where such commissions exist, executives name the plurality of members or control them outright. In the DRC, for instance, the 26-member Governing Council of the Judiciary (GCJ) is controlled by the President’s political coalition.

This is replicated in the DRC’s apex courts, such as the Constitutional Court, which consists of nine justices—three from the President’s own initiative, three from Parliament, where the President’s coalition holds a supermajority, and the remaining three from the GCJ. President Félix Tshisekedi gained control of all these structures in 2021 after installing allies in the GCJ and the top courts, following in the footsteps of his predecessors, Joseph Kabila, Laurent Kabila, and Mobutu Sese Seko.

The DRC’s apex courts have sided with Tshisekedi on many controversial measures such as the “state of siege” he imposed in Ituri and North Kivu in 2021, which instituted martial law, the trial of civilians in military courts, and the suppression of voter registration and turnout in the 2023 elections. The state of siege was extended more than 50 times despite evidence that it mainly targeted opposition activists, journalists, and human rights workers. As one legislator observed, “The president now has the constitutional court he wanted, the parliament he wanted, the same goes for the Senate, the prime minister and the government.”

Comoros’ President Azali Assoumani’ s capture of the courts was completed in 2018 through a stage-managed referendum that abolished the Constitutional Court and replaced it with a highly partisan constitutional chamber of the Supreme Court. Comoros’ top courts then rubber-stamped Assoumani’s abolition of the rotating presidency among the Comoros Islands, certified the extension of his incumbency to an additional two 5-year terms, and placed major obstacles in the way of his opponents, such as suspending their candidacies in the 2019 and 2024 polls.

Democratic Resilience

Fortunately, there have been cases where judges have asserted their independence and restored public faith in their ability to act fairly and judiciously. In Senegal, people from all walks of life have praised their Constitutional Council for annulling President Macky Sall’s decree shifting the dates of the country’s elections and effectively extending his term.

Supreme courts in Kenya and Malawi have ruled against incumbents in high profile cases, nullifying presidential election results deemed not credible in 2017 and 2020, respectively. The Kenyan decision was particularly groundbreaking as it was cited as a precedent in the Malawi ruling. The Kenyan case itself did not occur in a vacuum. It was a product of sustained civil public advocacy, protests, media engagement, parliamentary petitions, and strategic litigation by university lecturers, students, opposition leaders, and the Law Society of Kenya.

The historic Maina Kiai Petition of 2016, a civil society-led petition introduced ahead of the 2017 election by legal scholar Maina Kiai, is the blueprint of more recent litigation. In that case, the High Court ordered trailblazing standards of transparency, integrity, and accountability for elections that guided the Supreme Court decision in 2017. The standards were also visible in the 2022 elections, where the electoral commission demonstrated more of a commitment to play by the rules than at any time prior in Kenyan history. Among other provisions, it ruled that polling station-level results are final and cannot be altered in any way. This overturned the practice of  vesting sweeping powers in the electoral commission to alone verify, alter, and announce results. The Court of Appeals upheld the Kiai Petition in its entirety in August 2017 in the face of an unsuccessful government challenge.

Ruling parties have tried to neuter such efforts by simply ignoring them or using legal and legislative measures to limit their impact. In Zimbabwe, an amendment giving President Emmerson Mnangagwa greater control over judicial appointments, including an annual contract renewal for Constitutional Court judges, was signed into law in 2021. The Tshisekedi administration in the DRC, similarly, ignored civil society efforts to introduce institutional and legislative reforms to create a level playing field ahead of the elections.

Civic actors continue to push for the impartiality of the courts.

Civic actors continue to push for the impartiality of the courts, however. In September 2023, Zambia’s Constitutional Court found Parliament to be in breach of the constitution by failing to pass legislation to ensure the full financial independence of the judiciary. It ordered that, until these laws are passed, the finance ministry must report to Parliament every 6 months on the steps it is taking to ensure a financially independent judiciary. This petition was brought by one of Zambia’s most prominent lawyers with heavy backing from civil society.

Civil society organizations have also expanded the African Union’s normative architecture to support domestic struggles for judicial independence. In November 2023, the Pan African Lawyers Union, African Defenders, Southern Defenders, and the African Judges and Jurists Forum successfully lobbied the African Commission on Human and People’s Rights to adopt a resolution to appoint a Focal Point on Judicial Independence in Africa at their 77th session in Arusha, Tanzania. This has created a mechanism to document, monitor, and report on threats to judicial independence and recommend appropriate measures.

Preventing Atrophy of Impartial Judiciaries

One leading African opposition leader compares the hostile electoral environment in many African settings to restricted blood flow to the arm. “Eventually the arm becomes limp and dies from the inside because the blood vessels have been cut off.” Just as blood vessels are vital to organs, so too is a thriving democratic environment to instilling real democracy. Judges should recognize their unique role in bringing this about, without which democracy remains imperiled. Citizens for their part must continue employing all available channels to push for higher standards of judicial independence.

Calling on aggrieved parties to “go to court” without acknowledging the co-option of apex courts is insufficient.

The suffocating political environment in many African countries means that calling on aggrieved parties to “go to court” without acknowledging the co-option of apex courts is insufficient. Election observers should explicitly assess the state of judicial independence before the formal election period begins. Democratic regional and international partners should also give greater attention to strengthening the state of judiciaries. Judicial reform will similarly require these regional and international actors to do more to support citizens and call out fraudulent elections.

By Paul Nantulya

Courtesy: Africa Center