Revolutionary justice

To the barricades as the African sun beats down, comrade judges.
You have nothing to lose but your horsehair wigs and billowing black robes.
But surely the idea that the courts, deep in pomp, would constitute a revolutionary guard against the global tide of authoritarianism and political crookery is naive in the extreme?
Why would this elite cadre of judges flaunting their self-belief as they pass judgements have any interest in challenging the status quo?
Yet, for the past few years, the courts have shown a thrillingly robust spirit as better organised activists use them to show governments the limits of their power.
In the US, the courts struck down Donald Trump’s ban on Muslim immigrants; in ­Britain, they forced Prime Minister ­Theresa May to consult parliament before she signs its divorce with the European Union (EU).
This has extended to Africa where lawyers, in and out of court, find themselves on the frontline of political battles.
The ruling by Kenya’s Supreme Court on 1 ­September to annul presidential elections because they did not meet the standards set out in the electoral law was held up as a ­triumph for judicial in­dependence.
The court’s decision was also a side-swipe at international observers who had rushed to endorse the election and lecture the losers about the need to move on.
It may have been helpful for the court that Kenya’s chief justice, David Maraga, is a conservative and deeply religious figure with no record of radical affiliations.
Critics accuse the court of heating up Kenya’s political climate; in fact, it was already on the boil.
The judges were doing what they should do: testing the provisions of the constitution against realities on the ground to make the political system more accountable to the people.
Radical justice
Far better that arguments about fair elections and legitimacy should be hammered out in courtrooms or council chambers than settled on the streets.
Kenyan activists took a cue from their Ghanaian counterparts, who launched a monumental appeal against the 2012 election results.
Although those petitioners failed after eight months of detailed public hearings, the case helped change electoral law.
That laid the groundwork for last year’s far more credible and accountable elections.
In South Africa, the courts are being dragged into the centre of the political ­arena.
Asked to rule on the reliability of provincial and the African National Congress’s elections, they have been handing down verdicts inimical to President Jacob Zuma’s interests.
Most of all, the tacticians of the Economic Freedom Fighters and the Democratic Alliance have been scoring successes in their efforts to ensure that the 783 charges of corruption and racketeering against Zuma are tested in court.
There is no immutable plan for all this.
The activists and petitioners are losing as many cases as they win.
But by pushing back against arbitrary power, the courts are opening up ways for people to organise a more honest and accountable political system.
That’s radical, if not revolutionary, justice. 
From the November 2017 print edition 

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