Political capture and weaponisation of top courts imperils democracy

We are on the cusp of a self-induced collapse of the Anglo-Saxon global leadership.

Signifying this demise of Anglo-Saxon economic and political hegemony is Britain’s vote to leave the European Union, the election of Donald Trump as America’s President and the surge of right wing populist movements.

In significant ways, the demise of Anglo-Saxon global leadership has created a vacuum left by the retreat of America and Britain that China and a resurgent Russia can fill and use to popularise their state-led models of economic and political leadership.

In Asia, Africa and Latin America, this demise of the West’s global hegemony is captured by a deepening democratic recession recently typified by the ubiquitous capture of supreme courts by political interests, powerful military oligarchies and criminal cabals.

The capture and turning of top courts into weapons in election disputes has thrown into a profound crisis, the Anglo-Saxon model of liberal democratic values and practices — signified by many strong parties competing for power in elections and referendums conducted or adjudicated upon by independent institutions under liberal constitutions.

DEMOCRATIC VALUES

Nowhere is the liberal democratic values and the demise of Anglo-Saxon global leadership so publicly dramatised than in Kenya. On September 1, Kenya’s Supreme Court, by a majority vote, overturned the re-election of President Uhuru Kenyatta in the August 8 election, a decision faulted by dissenting justices as unconstitutional and by the ruling Jubilee Party as “a civilian coup” against the sovereign will of the people.

In a poignant way, Kenya’s Supreme Court signifies the collapse of the Anglo-Saxon model of democracy promotion based on massive injection of resources, which have, tragically, gone into a deep Maxwell Pond.

This demands a rethinking of this euro-centric democracy promotion archetype, which was strategically ill-thought-out. Its main plank is the controversial “opposition strategy” that was aggressively pushed in countries like Kenya and Zimbabwe.

In its gist, this strategy entailed channelling massive financial resources to opposition parties — often led mainly by Marxists-turned-liberals — to enable them win elections and supplant governments perceived as authoritarian or illiberal.

Colossal resources were also directed towards creating strong and “independent” institutions especially the reform of judicial systems underpinned by the maxim that all democracies need courts and judges to defend the rule of law, safeguard constitutional order and check executive power.

ELECTORAL DISPUTES

In the wake of electoral disputes in countries where courts were perceived as being under the thumb of illiberal or authoritarian governments, opposition parties and civil society were supported to mount mass protests, which often turned violent, justified as necessary to institute power-sharing, force “authoritarian” governments to accept change and expand space for far-reaching reforms.

But the political legacy and hidden cost of power-sharing models have been dire, blamed by scholars Denis M. Tull and Andreas Mehler (African Affairs, July 2005), for reproducing insurgency and violence strategies as elite factions use street protests to force their way into negotiation tables.

Hell-bent on forcing governments to share power after losing an election, opposition parties and militant civil society activists have no qualms subverting independent institutions to create the necessary paralysis to force power-sharing.

INDEPENDENT JUDICIARY

The “opposition strategy” prototype is unravelling. Far from producing genuinely independent judiciary, supreme courts have been politically captured and weaponised by powerful factions, deepening the fragility of emerging democracies.

Top courts have increasingly lost their innocence, neutrality and magisterial independence. In parts of the world, their activism has triggered recent cycles of cataclysmic violence.

But the “weaponisation” of supreme courts is a universal scourge. In America, the Bush versus Gore case in December 2000 revealed the political capture of supreme courts in electoral disputes. Here, the majority opinion emerged from the Conservative Republican Justices who ruled against Gore for partisan reasons, deciding the case on the basis of the “personal identity and political affiliation of the litigant.” Not surprisingly, Harvard University law Professor Alan Dershowitz has rightly described this as “the single most corrupt decision in (US) Supreme Court history.”

Moreover, the waning popularity of the Anglo-Saxon model of democracy at the heart of the Anglo-Saxon orthodoxy (the European Union) is evident in Poland.

APPOINTMENT OF JUDGES

Here, in July 2017 the right-wing leadership pushed legislation to repeal the law to give government officials more control over the appointment of judges, blaming the courts for the country’s slow progress. However, the government has shelved the legislation, fearing that the move will stoke criticism of an authoritarian turn.

After September 1, Kenya risks going the way of Pakistan, a textbook case of what happens to elected leaders when a national judiciary loses its genuine independence, becomes politicised and captured by powerful factions in society. 

Here, on July 28, 2017, Pakistan’s Supreme Court removed Prime Minister Nawaz Sharif from office in what is widely seen as a dark move by the country’s powerful military oligarchy to use the court to oust a popularly-elected premier it considers “disobedient”.

CORRUPTION

In reality, it is not the corruption relating to his family that drove the Supreme Court to end Sharif’s term prematurely. It is his conciliatory stance towards India and Afghanistan and demand that the country’s inter-Service Intelligence ends its use of militant groups as tools of foreign policy. Indeed, Pakistan’s top court has typically joined forces with the military by using allegations of corruption.

In the run-up to Kenya’s October 26 fresh election, the country and its external partners must look to Venezuela as what should never happen to its democracy.  Here, the West has reportedly backed the opposition in its fight against the country’s Supreme Court widely seen as dominated by President Nicolas Maduro’s loyalists.

Prof Peter Kagwanja is a former Government Adviser and currently heads the Africa Policy Institute (API)