African Judiciaries and Democratic Backlash: Judicial Strategies for Authoritarian Repression and Courts as Arenas for Resistance

“Democracy in Malawi is to have a judge on call.” The quote reflects the central political role courts have come to play in some African countries as a space for actors in civil and political society to contest executive overreach and assert their constitutional rights. But it may also be read as alluding to the use of courts as a tool for executive control of the political game, and the pressures this place on judges and judicial independence. This paper is a comparative study of the multifaceted roles and responses of African judiciaries in contexts of more and less pronounced attempts to restrict political space and judicial independence, and of their role in strategies of democratic resistance. Focus is on eight African countries that share a British colonial heritage and important legal traditions but that vary with regard to the democratic qualities of their regimes: Ghana and South Africa are consistently scored among the best performers on continent in terms of democracy, Zimbabwe among the worst, with Kenya, Malawi, Uganda, Tanzania and Zambia in between. The analysis combines qualitative fieldwork data with original and extant survey data to explore factors that contribute to the observed variations in courts’ democratic accountability function and resilience. It forms part of the CMI-UiB/LawTransform research project “Breaking BAD: Backlash Against Democracy in Africa” funded by the Norwegian Research Council (2017-21).