Courts as theatres of political warfare

It was variously reported in the media last week that the government's strategic agenda is virtually in jeopardy because of legal challenges that have targeted critical policies with a view to having them nullified on constitutional grounds.

According to the media framing, the existence of such litigation indicates the precarious constitutional underpinning of the bottom-up economic transformation agenda. This is a most unfortunate perspective, primarily on the ground that it takes considerable discursive contortionism to arrive at the mistaken assumptions necessary to facilitate such a limited attempt at analysis.

The broader context of this situation must stretch back to the infernal crucible of our adversarial politics, which, in the most recent formal electoral contest, resolved in a most upsetting outcome for powerful forces which had taken it for granted that state power is theirs for the asking and for keeps.

In this most humiliating of aftermaths, these agencies have explored a plethora of tactics to deligitimise the election in terms of its processes as well as the outcome.

Failing that, they subsequently resorted to a broad strategy of destabilisation with a view of fomenting sufficient disenchantment to compel the incumbent into a jua kali extraconstitutional settlement that would facilitate power sharing and a measure of continuity for their policies and interests.

This phase of the continuation of adversarial competition was ostensibly defused by the institution of the bipartisan dialogue framework, which, at the bare minimum, required that parties give the engagements a chance as a sign of good faith.

However, there seems to have arisen fundamental strategic misalignment within the opposition coalition, mainly driven by discrepancies in the understanding of the potential political benefits of the dialogue, disquiet over optimality of anticipated outcomes, and, most immediately, acute sensitivity to the potential of any deal, however speculative, to confer real advantages in forthcoming electoral races.

This is because as matters stand, the Azimio alumni are now vicious rivals with regard to the 2027 presidential election, and any process with potential benefits for any of their number can spell doom for the rest, and must therefore be scuppered at the earliest opportunity.

At the same time, the Azimio survivors' club remains united that subverting the government's agenda holds real hope of a fertile ground for them come 2027. Regardless of their internal differences, it is generally understood that it is in their interests to constitute a pragmatic coalition, even at the informal level.

The game changer in this equation is the anomalous activity of the retired president, whose recent birthday festivities inaugurated a season of overt sabotage. With Jubilee executing a daylight exodus out of his clutches, and ODM reverting into strategic reset mode fully focused on the next election, Uhuru Kenyatta has recently buried frantic claws into the back of Kalonzo Musyoka, a politician he has hitherto held in unmitigated disdain.

For the discerning observer, this development is a fair barometer of the intensity of Kenyatta's desperation, and of his acute need to remain viable in dire straits.

Under such conditions, it stands to reason that he would default, without a second thought, to the one resource with which he is abundantly endowed, a croesus-like treasure, which he can deploy in a direction that best guarantees a reasonably disruptive outcome.

Having exited the Executive and bereft of legislative heft, there remains one arena open for him to paralyse the implementation of the government's flagship programmes. The courts are open public forums for parties to have their claims and grievances competently adjudicated.

No one, except in extraordinary instances of arrant nuisance and vexatious proclivities, may be turned away from exercising this fundamental right. Even parties with mischievous intent must be heard first, and the legitimacy and merit of their causes substantively determined after due process. The court process guarantees a mechanism that facilitates both the litigants and the judicial officers to reach an outcome that can be accepted as just and conclusive.

Between the institution of a cause and its determination, are innumerable interlocutory opportunities for parties to secure temporary but important tactical victories, placing adversaries at a gross disadvantage.

Although there are mechanisms to detect and redress interlocutory delinquency, the procedural rigmarole is unwieldy, and causes even greater delay, perpetuating the mischief desired by its instigator.

Lawfare has been defined as the use of law as a weapon of war. The legal process can be dextrously deployed by agencies possessed of means to secure outcomes wholly inimical with the fundamental purpose of the legal system and deleterious to the public interest. Lawfare does not necessarily entail a conspiracy between malign elements and the judiciary, which would merely be raw, elementary corruption. Lawfare is unilateral and entails the sophisticated, strategic leveraging of due process.

The saving case of our legal system is that every side gets its opportunity to present its side of the story. It is however important that the judiciary and respondents become vigilant against lawfare, and astute in effectively countering its innocuous- looking, yet deadly sleights of hand.

- Mr Ngéno is an Advocate of the High Court