The connection between politics and law is a relationship of power. Law is rarely born from mass consensus but usually reflects the centre of power at any given time.
Those with power, whether elective, nominated or inherited create and direct the law in a way that enables them to achieve their desired goals, for country and self. This means that the law can be crafted so that it is either weaponized or protective for those who craft it. In autonomous regimes, the law can be particularly punitive if the centre of power is threatened. In most democracies, constitutions have been re-written to reflect the electorate as a competing centre of power.
Thus, most changes to an existing letter of law will have to pass through a referendum. The importance of a reflective consultation is that weaknesses in the law, whether real or imagined must be discussed openly. What democracy does best is ensure open dialogue so that the legislature is not a functionary of mere political party rivalries. A referendum allows wide participation from competing groups in the country reflecting plural centres of power and opinion.
Interestingly, this is also one of the greatest weaknesses of democracy – that a party with an overwhelming majority can change laws almost wilfully in the same way a dictatorship can. The difference, however, is that a democracy has multiple centres of power that include media and civil society.
Therefore, when the state appears to consolidate power and isolate other centres of power including opposition political parties, fragmentation arises. Such fragmentation worsens if laws become protective of the government and punitive for other non-state centres of power.
Where there is a deterioration or loss of competing opinions, democracy comes under threat. Even so, those in power have the right to their position and must communicate what they perceive as the right way to govern as per their manifesto. A discordant or fragmented opposition will be easily taken advantage of politically.
Democracy, after all, is about contestation for mass approval. While the legislature is expected to become a host of vibrant opposing debates which are inherent of plural politics, the judiciary must be less so. Politics has a habit of settling scores through the judiciary mostly for gain.
Sadly, this can cause the judiciary to keep political skeletons and protect political agenda than the integrity of law. The difference between the political and judicial pillars is that political power often shifts quicker than judicial power. Office tenures for judicial officers such as judges do not respond to electoral cycles, in many instances members of the bench enjoy a security of tenure that may reflect “life peerage”.
This is why politicians that loudly preach the rule of law must be perceived cautiously. The rule of law, as a statement or slogan, is perhaps the most misleading and self-serving assemblage of words which is convenient for both dictators and democrats. The reason is that to suggest an overt attention to an already existing set of standards could foretell an intention to either be constructive or destructive.
When the state, particularly the executive, becomes overly legalistic, the judiciary becomes a conduit for score settling and its centre of power is diminished. When this happens, the eventual result is that the rule of law becomes a rule of preferences as interpreted by the executive and judicial allies. A judiciary that is overcome by a legalistic executive can neither claim judicial independence nor integrity. There are rare cases where the judiciary shows distance to political consensus. For example, in 2020 the Constitutional Court of Malawi annulled election results in which the then incumbent president was said to have won.
The judiciary proved a decisive and impartial centre of power. Kenya also provides a recent example where the president was forced to rescind a Finance bill (2024) debated in parliament because of public opposition to, in large part, increasing taxes on basic commodities. The Kenyan President maturely understood that the ultimate centre of power is the electorate. Zambia, too, is one of the few countries in Africa with a record of election results that unseat incumbent presidents. In that respect, the institutions of government have become matured in the democratic transfer of power. We cannot claim rule of law or governance when the constitution is undermined for personal gain. It is not rare for people in power to manufacture an enemy as a distraction to real issue and flaws in their leadership as seen in many countries including Zambia. Ultimately, the judicial centre of power must have effective independence more than pretentious integrity.
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