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February 20, 2019

Lawfare dangerous and undercuts law

Supreme court. Photo/Monicah Mwangi
Supreme court. Photo/Monicah Mwangi

Wikipedia defines ‘lawfare’ as a 'form of asymmetric warfare consisting of using the legal system against an enemy by damaging or delegitimizing them, tying up their time and resources, or beating them at public narrative building'.

However a friend sent me a small note where he defined ‘lawfare’ as "the abuse of laws and judicial systems to achieve strategic military or political ends". The note went on to say that lawfare consists of "the negative manipulation of (especially) international and national human rights laws to accomplish purposes other than, or contrary to, those for which they were created’.

This sounds scary; as it should.

Lawfare is especially devastating when unleashed on an unsuspecting public like ordinary Kenyans normally are. For example, lawfare was used very effectively to introduce same-sex marriage laws to the shock of many who did not realise what happened before the laws were in place.

In fact, some have argued that our current Constitution is one of the most successful lawfare executions in recent times. Today Kenyans are subservient to laws they never understood the meaning of and which leave them exposed to manipulation by smart minorities, against the will of the ignorant majority, which undermines the very essence of our democracy.

Lawfare is usually the weapon of choice for foreign nations that want to affect policy or government changes in another state without having to result to overt political interference. Successful warfare requires said foreign agency to partner and resource a local NGO within the country targeted for change. In Kenya we have seen this happen quite effectively when local NGOs tried unsuccessfully to subvert the decision of who would be elected to lead the country at what was clearly the behest of foreign nations.

Lawfare can be used to delegitimise a state's right to defend itself; establish channels that use legal instruments like court orders and injunctions to subvert justice, and to establish avenues that undermine the rule of law. Essentially, lawfare is not a force for good; something used in the pursuit of justice. It is a negative undertaking that is primarily used by mainly smart ingenious amoral operators to subvert the democratic will of the masses by undermining a nation’s ability to correctly apply the law.

In normal circumstances lawfare is an effort by third-parties activists, with a court of law as the playground. Lawyers representing NGOs and legal activists will look for loopholes in a nation’s laws and raise them in court strategically towards an end that defeats natural justice. This is how same-sex marriage laws were introduced.

However in Kenya lawfare is now being implemented directly by the courts themselves. Think about what happened just this week when Justice Chacha Mwita refused to lift a deportation order in a case before him in regards to Miguna Miguna’s deportation. Justice Luka Kimaru, sitting in a different court that was not even dealing with the matter of Miguna’s deportation, ruled that Miguna should not have been deported and demanded that Miguna’s revoked passport be brought to the court!

Lawfare has gotten Kenya to the point where the Supreme Court can ignore evidence before it (as we learnt from those within it that dissented to the majority decision), nullify a presidential election on a technicality, excuse the party that sought the nullification when it decides to violently sabotage the repeat election, and excuse the Chief Justice when he says he cannot stop his judges from illegally swearing in a ‘president’, before he then goes to share a platform with a governor who less than 24 hours earlier participated in said illegal swearing-in, to open a law court no less.

Fortunately – or unfortunately, depending on where you sit - the audacity of this same lawfare is what has brought us to the point where ignoring a court order is now justifiable by some; at least up until a total reconstruction of this institution is carried out.

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