World Politics

I. Introduction

WHEN autocrats turn to courts, these moves are often heralded as signs of democratic opening. Although judges tend to face significant constraints in autocratic regimes, rule-of-law proponents contend that every case brought before a judge opens new avenues to hold power accountable. This optimism is rooted in the long-held view that the judiciary is a potential safeguard against dictatorship, a double-edged sword that can serve the interests of authority and also advance the rights of the powerless.¹

But optimism must be tempered when courts become sites of political repression. In recent years, governments in Cambodia, Egypt, Iran, Turkey, and Zambia have used courts to undercut political rivals and silence democratic dissent.² These cases have not enhanced the rule of law, but instead have facilitated democratic backsliding under the guise of due process.³ Rather than challenge power, courts may reinforce autocratic control.

Despite this trend, courts remain an understudied institution of state [End Page 321] repression. In fact, conventional definitions of repression are almost exclusively extrajudicial, defined as the use of coercive state authority to threaten or intimidate.⁴ Repression research has largely focused on the restriction, arrest, detention, torture, and even murder of political challengers—tactics considered to be routine features of arbitrary rule.⁵

Scholarship on autocratic judiciaries challenges the assumption that courts are neutral actors in repressive regimes. As these works show, empowering courts is not the same as protecting legal rights; courts can enable rather than constrain autocrats, and they also serve vital coordinating, signaling, and information-gathering functions that stabilize autocratic power over time.⁶ Although this research draws attention to the autocratic functions of law and order, the findings tend to be disconnected from broader repression research, an oversight that has limited the development of theories to explain how and why courts are used as instruments of political repression.⁷

Considering the range of repression tools at an autocrat’s disposal, under what circumstances do they turn to courts? I argue that courts become instrumental when rulers confront challengers from within the regime. Unlike regime outsiders who pose a common external threat for insiders to repress, internal rivals present a more complex target. To deal with the latter type of challenger, the ruler needs to first mobilize insiders behind the idea that he is legitimate and his rivals are not. Generating this belief can help turn insiders against one of their own and makes it easier for the ruler to punish disobedience within the regime.

Courts are an ideal forum to propagate narratives of incumbent strength and challenger weakness. Specifically, they provide a stage for rulers to prosecute their challengers for crimes against the regime. From the initial accusation to the final verdict, the criminal trial constitutes a ritual (defined as a formal, routinized, public ceremony) that establishes a shared set of beliefs and rules.⁸ When authority has been challenged by an internal rival, this ritual can help to rally members of the regime around the idea that the ruler is still in charge.

The notion of trial as ritual has important implications for understanding the role courts play in autocratic survival. As Malcom Feeley observes, when the “courtroom encounter [is] a ritual,” courts are no longer deliberative bodies, nor are judges assessors of facts or law.⁹ [End Page 322] Truth is largely irrelevant here; what matters instead is that a trial legitimizes the incumbent’s claims to power and delegitimizes those of his challengers.

The fact that judicial processes bring insider conflict into the open is significant. In particular, while a trial broadcasts the existence of rivals within the regime, it carefully controls how threats to power are interpreted. Using the language of the law, democratic dissent is framed as a crime and political rivals are cast as threats to national security. By generating these stark, categorical definitions of right and wrong, a judicial strategy structures conflict in a way that makes it more easily contained.

I evaluate these arguments by turning to sub-Saharan Africa in the postcolonial period, a context that offers an ideal testing ground...