Legalised resistance to autocratisation in common law Africa

Since the 1990s, African incumbents have engaged in forms of rule-bending that weaken democratic institutions. The democratic backsliding witnessed weaponises law through processes of autocratic lawfare. However, civil society and the opposition may challenge the incumbent’s attempts at autocratisation through the use of law and, in so doing, resist processes of democratic backsliding. We refer to processes where civil society actors and opposition politicians seek to defend pluralism through legal mobilisation as democratic lawfare. We explore the responses to autocratic lawfare by pro-democracy actors in five African common law countries: Kenya, Malawi, Uganda, Zambia and Zimbabwe. Our analysis shows that across the common law system countries, court decisions have secured space for political debate and protest, particularly in relation to elections. In the countries with the strongest pluralist traditions (Kenya, Malawi and Zambia), court actions have often succeeded in preventing incumbents from tilting the electoral playing field and reigning in parliament. Even in the most autocratic settings, as the cases of Uganda and Zimbabwe, courts have provided some protection to opposition candidates. To understand resistance to autocratisation, it is necessary to analyse the opportunities inherent in the institutional context and the resources – organisational, strategic and normative – that different actors bring to these contests.