By Edgar Muvunyi Tabaro
The decision by Kenyan lawyer and former Justice Minister Martha Karua to challenge her deportation from Uganda in court is more than another legal dispute. It is another reminder that the courts have increasingly become the arena in which politics in East Africa is contested.
Some will see this as evidence of shrinking political space. Others will see it as an affirmation of constitutionalism. I am inclined towards the latter, albeit cautiously.
The eminent Tanzanian jurist and political economist, Professor Issa Shivji, recently offered a powerful framework for understanding this phenomenon. In his essay, When Lawfare Becomes Warfare, he argues that when states retain confidence in legal institutions, political struggles are fought through the law. Governments prosecute. Political actors sue. Citizens petition. Lawyers argue. Judges decide. The courtroom becomes the battlefield.
He calls this lawfare.
That battlefield should not be mistaken for constitutional failure. On the contrary, it is infinitely preferable to its alternative.
Our region has witnessed states where political disagreements are not resolved by judges but by soldiers; where critics are not prosecuted but eliminated; where the courtroom is bypassed altogether because force has become the preferred language of politics. There is no appeal against a bullet. There is no cross-examination after an enforced disaippearance. There is no constitutional remedy for an assassination.
Uganda, despite its imperfections, has largely resisted that trajectory.
Whether it is the Besigye litigation, the prosecution of Erias Lukwago, election petitions, constitutional references or now Martha Karua's challenge to her deportation, political disputes continue to find their way before judicial officers. That should tell us something important. The courts remain relevant because society still believes they matter.
This is not to romanticise the judiciary. Courts are neither infallible nor immune from criticism. Judicial decisions should be scrutinised, appealed where necessary and robustly debated within the bounds of civility. But there is an important distinction between questioning a judgment and undermining the institution that delivered it.
That distinction is vital.
A judiciary survives not because every decision is universally applauded but because citizens retain confidence that disputes can still be resolved through legal process rather than political violence.
Equally important is the responsibility borne by political leaders themselves.
Politics was never intended to be practised exclusively through litigation. Democracies flourish when dialogue remains possible even between bitter adversaries. Formal negotiations, parliamentary engagement, private conversations and quiet diplomacy remain indispensable tools of statecraft. Resort to the courts should never become a substitute for political leadership.
Yet where dialogue fails—and it inevitably sometimes will—the courtroom must remain a respected constitutional forum.
The temptation in highly polarised societies is to view judges as allies when they agree with us and enemies when they do not. That temptation must be resisted. Judicial legitimacy cannot depend upon political outcomes. It must rest upon fidelity to the Constitution and the law.
Professor Shivji's warning deserves careful reflection. When legal institutions lose credibility, states increasingly abandon persuasion for coercion. Lawfare slowly gives way to warfare. History teaches that once that transition occurs, rebuilding public confidence becomes infinitely more difficult.
Uganda's constitutional journey is still unfolding. There will be more politically charged prosecutions. More constitutional petitions. More controversial judgments. That is the nature of constitutional democracy.
The real test is not whether such cases arise. The real test is whether we continue to believe that they belong before judges rather than before generals.
For when citizens lose faith in the courtroom, they inevitably begin looking elsewhere for justice. History offers little comfort about where that search usually ends.
