“When Courts do Politics”

Marxist literature makes a distinction between the “base” of a socio-political entity like a nation-state and its “superstructure”.  To put it simply, the "base" comprises the economy and science and technology applied in production, and the "superstructure" comprises the government, laws, religion, ideology, culture, education, etc.  In the long run, Marx said, it is the base that determines the social relations of production between, for example, the workers and the owners of capital under capitalism. However, in the short to intermediate term, the superstructure can influence the base.  In fact Mao went further to say that in the short-run politics are in command.  

Oloka-Onyango’s book is a micro-analysis of this relationship, taking the judiciary and public interest including politics in East Africa as his point of reference. 

As the book’s blurb says: “Using the phenomenon of public interest litigation (PIL) as the primary focus of analysis, this book explores the manner in which the judicial branch of government in the three East African states of Kenya, Tanzania and Uganda has engaged with questions traditionally off-limits to adjudication and court-based resolution”.

Among the PIL issues, the book ploughs through the complex issues relating judicial struggles over sexual and gender-based discrimination, social justice and poverty, and the adjudication of presidential elections.

Can courts generate significant social reforms through litigation? Can courts be used in order to address issues of poverty and marginalisation? The author reaches a rather sober conclusion: “… as judges battle with time-honoured legal precedents, received dogmas and contending (and often antagonistic) societal forces, the struggle in the courts is neither straightforward nor necessarily always transformative”.

Politics and the judiciary in East Africa

The book’s title “When Courts Do Politics” is challenging. This review focuses on this aspect and asks the question: has the judiciary in East Africa influenced the region’s politics, and in particular the presidential elections?

“East Africa”, the book records, “has had its fair share of disputatious balloting. But it has had only a handful of judicial contests … thrice in the case of Uganda (2001, 2006 and 2016), and once in the case of Kenya (2013). Tanzania’s presidential election has never been disputed in a court of law”. (pp. 218-219)

Indeed, given our common knowledge that presidential elections have almost always been controversial in East Africa, it has come to me as a bit of a surprise that these have been contested in a court of law only three times in Uganda, only once in Kenya, and never in Tanzania.

In Kenya, after the 2013 presidential elections, the losing party headed by Raila Odinga took the matter to the Supreme Court but lost the case. In the recent (August 8, 2017) election, Odinga lost again, but initially announced that there was no point taking the matter to court. He has since lodged his petition at the Supreme Court. That does not speak too well of the role of the judiciary in the political process, or people’s faith in the legal process. This also seems to be borne out by Oloka-Onyango’s conclusion on Uganda.

“In the aftermath of 1986 removal of the military from power in Uganda, President Museveni promised fundamental change, even threatening to overhaul the existing legal regime in judicial apparatus and to replace them with what was described as “popular justice”. Today, the notion of popular justice in Uganda has more or less disappeared from the political lexicon. … State judicial structures have changed little and in some instances have even decayed… In sum, the approach of the Uganda state has been to prop up those elements of judicial power that support and entrench economic agenda”. (p. 262)

This is a devastating verdict on both the nature of politics and the limited role that the courts can play in the politics of power. So the title of the book, When Courts Do Politics, should be understood to mean that the role of “court politics” is to validate the power of the person or regime that is in control of the state.

This leads me to raise a question that the book does not address, but it is an important one.

Who is really in control of state power in our countries?

This is a question that was widely debated in the 1970s at the University of Dar es Salaam which had attracted a host of people – refugees from neighbouring countries, freedom fighters from South Africa and Zimbabwe, and academics from across Africa, including Uganda, and beyond.  The debate was later published as a book titled, The University of Dar es Salaam Debate on Class, State & Imperialism, edited by me, with an introduction by the veteran Zanzibar Marxist politician, Mohammed Babu. Almost fifty years down the road, the issues raised in the debate are still very relevant and significant.

During the debate I held the view (and still do) that in the neocolonies, the state is still in the effective control of multilateralised imperialism.  Britain controlled Uganda until our independence, but since then the economy of Uganda (and for that matter of Kenya and Tanzania) is effectively in the hands of globalised capitalist corporations.  Amongst all African leaders, the person who best understood and defined neocolonialism was Kwame Nkrumah, who was himself overthrown, among other factors, by the corporate manipulation of the cocoa market prices which had plunged Ghana’s economy into a crisis, leading to a military coup backed by the empire.

Nonetheless, I would argue that political independence is an important stage in the fight against imperialism. Under neocolonialism, the common people are brought into the democratic process directly. Political parties are formed to vie for power and they have to reach out to the people for votes. This is significant.

But elections are regularly manipulated by political leaders – partly, of course, for their own benefit, but also, I would contend, for the benefit of the empire. As long as a degree of political stability enables the international financial oligarchy to continue to exploit Africa’s resources, it will support the regime that is in power. Is it surprising that the empire endorsed the 18 February 2016 elections in Uganda and the August 2017 elections in Kenya?

Going back to the “base” and “superstructure” dialectics mentioned earlier, it is manifest that the base – the economy – in East Africa is still in the hands of imperial corporate capital that rules, albeit indirectly, through its comprador agents. These agents are very few in number – not even a thousand in Uganda or Kenya –  but significantly in control of the top echelons of the state apparatus. In this situation, in my view, the peoples’ courts might play a more revolutionary, transformative, role in our countries than the judiciary, which is firmly embedded in the neocolonial structures of governance and adjudication.

But this takes the debate to another level altogether.

@Yash Tandon

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