By Ekaterina Handa
Lawfare, a notion that fuses the majesty of law with the belligerence of warfare, describes the systematic abuse of legal instruments to intimidate or silence adversaries. Its ugly side emerges from a calculated perversion of process, where justice mutates from a protective shield into a crude bludgeon.
For Kenya, a nation still sculpting its democratic ethos, the creeping threat of lawfare demands a resolute safeguard, because protecting citizens from juridical predation is the foundational promise of a constitutional order that proclaims that its sovereignty rests on the people’s will.
Kenya’s recent history offers a sobering catalogue of weaponised law. Activists challenging land grabs have faced unending defamation suits, journalists scrutinising public expenditure have been silenced through the opaque Computer Misuse and Cybercrimes Act, and political competitors have repeatedly encountered hitherto dormant criminal files that are conveniently resuscitated to inflict angst.
Such are not the ordinary mechanisms of justice. As the International Commission of Jurists (Kenya Chapter) noted in its 2022 report, “the instrumentalisation of criminal law to muzzle dissent has become a disquieting feature of our public life.” Even charges that are eventually dismissed inflict a devastating toll that leads to financial haemorrhage and reputational scarring.
Examined closely, the logic behind lawfare corrodes the very pillars the 2010 Constitution sought to erect. When the guarantee of a fair hearing is sidestepped and procedural rules are exploited solely to drain an opponent’s resources or to chill legitimate advocacy, the court mutates from a temple of equity into a marketplace of coercion.
Widely recognised as the greatest English judge since the Second World War, Lord Bingham of Cornhill in The Rule of Law reminds us that the law “must afford adequate protection of fundamental human rights” and must not be distorted into an instrument of oppression by those who command deeper pockets or state authority. Unchecked, lawfare slowly suffocates civic courage and public discourse, thereby tilting the calculus of speaking truth to power irreversibly.
Any tactical abuse of legal sanctity thrives on a structural asymmetry that is both callous and unremitting. A state body or a wealthy litigant can, with negligible strain, file a barrage of frivolous applications, engineer endless adjournments, and mount perpetual appeals, while the ordinary Kenyan bleeds time and money they can never recoup.
Where such predatory litigation prospers, what withers first is the democratic tissue upon which open deliberation thrives, incisive scrutiny of authority blossoms, and the robust petitioning protected by the Constitution endures. Kenya simply cannot afford a public square policed exclusively by the writ and the filing fee.
The remedies against potential perils of lawfare demand legislative imagination and judicial fortitude in equal measure. Parliament ought to perhaps enact a statute enabling the summary dismissal of suits that stifle public engagement, coupled with mandatory cost awards against harassing parties.
Judges, for their part, should invoke inherent powers to prevent abuse, as the Court of Appeal affirmed in Samuel Kamau Macharia v. Kenya Commercial Bank, where it declared that courts are not helpless against those who prostitute judicial mechanisms. The legal profession, guided by the Law Society of Kenya, must simultaneously cultivate an ethic where advocates refuse to become agents or worse even, mercenaries of harassment.
Safeguarding Kenyans from the ugly side of lawfare is, ultimately, to defend the soul of our republican dream. In fact, a legal system wielded as a dagger against the citizenry forfeits its moral authority and degenerates into a fear-mongering monster wearing judicial robes.
That is why protection of Kenyans against the downsides of lawfare must be deliberate, structural, and unwavering.
Handa is an advocate of the High Court
