Strategies of repression vary widely between extrajudicial and judicial extremes, from unrestrained acts of violence to highly routinized legal procedures. While the former have received a great deal of scholarly attention, judicial methods remain relatively understudied. When and why do rulers repress their rivals in court? The author argues that autocrats use a judicial strategy of repression when confronting challengers from within the ruling elite. Unlike regime outsiders, who pose a common, external threat to mobilize against, insiders present a more divisive target. When autocrats confront the latter, a judicial strategy legitimizes punishment, deters future rivals, and generates shared beliefs regarding incumbent strength and challenger weakness. Using original data on political prisoners in postcolonial sub-Saharan Africa, the author finds that autocrats were significantly more likely to use a judicial strategy against insiders and an extrajudicial strategy against outsiders. A case study of Kenya traces the logic of the theory, showing how intraregime conflict made courts a valuable instrument of state repression. The findings demonstrate how courts can play a central role in autocratic survival.
Why do autocrats hold political trials when outcomes are presumed known from the start? Undue Process examines how autocrats weaponize the judiciary to stay in control. Contrary to conventional wisdom that courts constrain arbitrary power, Shen-Bayh argues that judicial processes can instead be used to legitimize dictatorship and dissuade dissent when power is contested. Focusing on sub-Saharan Africa since independence, Shen-Bayh draws on fine-grained archival data on regime threats and state repression to explain why political trials are often political purges in disguise, providing legal cover for the persecution of regime rivals. This compelling analysis reveals how courts can be used to repress political challengers, institutionalize punishment, and undermine the rule of law. Engaging and illuminating, Undue Process provides new theoretical insights into autocratic judiciaries and will interest political scientists and scholars studying authoritarian regimes, African politics, and political control.
Constitutional democracy in Malawi has prevailed despite a series of setbacks. The chapter links this resilience to the interaction between state actors like the judiciary, civil society actors, and a shifting political opposition that at critical junctures have succeeded in confining or overturning authoritarian attempts, often in a concerted cooperation with international actors. The judiciary has remained largely independent, despite recurring attempts by the executive to exert undue influence through threats, bribes, irregular appointments, and removal of judges. The courts in Malawi have been able to maintain a supportive constituency in civil society as well as in the political opposition. This support is in turn mobilized to protect the courts at critical moments. Although the relations between the government and international pro-democracy forces have been characterized by fits and starts (not unlike Malawi’s democratic trajectory), international actors have at critical moments contributed toward safeguarding judicial independence and accountability mechanisms that have kept political channels open. Donor support and leverage contribute to both the mobilizing potential of civil society and the relative restraint of the government.
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