How movements can make courts play their role in defending democracy

This article How movements can make courts play their role in defending democracy was originally published by Waging Nonviolence.

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Courts are often seen as a last line of defense for democracy. In the month since Donald Trump took office, over 60 legal challenges have been filed against his administration’s executive actions. Yet many Americans are concerned with how U.S. courts will fare in the new tests to their role as defenders of democracy. What if the courts are compromised or politicized? Do they still have a role and can they still be influenced?

In my country, Zimbabwe, our parliament is gearing up to change the Constitution to extend the president’s term of office (and its own term) indefinitely, effectively abolishing the need for future elections. Can the courts play a role in defending democracy?

What about in authoritarian states where courts are viewed as biased in favor of the autocrat in power and courts are weaponized as a tool of repression? In such contexts, pro-democracy movements face a difficult question: to litigate or not to litigate?

At first, the answer might seem obvious: You don’t litigate. Certainly, there are good reasons not to rush to litigation when the courts are stacked against you. An unfavorable ruling against the movement might help to give a veneer of judicial legitimacy to brazen illegalities by the regime. Worse still, litigation can have the effect of demobilizing people if those engaged on a particular issue fold their hands and say “Well, it’s before the courts now. Let’s wait and see.” When that happens, not only is the movement more likely to lose in court, but, even if you win in court, it can have a longer-term detrimental impact on the effectiveness of the movement. If the victory is attributed to the brilliance of the lawyers or the benevolence of the court, rather than to the power of the people, it undermines a movement’s key source of power: people’s sense of their own agency.

Nevertheless, even in authoritarian states, pro-democracy movements might still find themselves in court for a number of reasons. For a start, often a movement has no choice. In what we might call “defensive litigation,” the movement (or its members) are dragged to court by their opponents (usually the state) against their will, typically through the arrest and prosecution of activists through the criminal courts. Authoritarian regimes around the world are increasingly using “lawfare” as a means of repression.

Secondly, a movement may decide to engage in “counter-offensive litigation.” This is when the movement’s opponent does something brazenly unlawful directly against the movement or its members, and the movement decides to challenge it in court. This could be the torture of an activist in police custody, or a march being banned, or where administrative procedures are used by the state to capture or destroy the movement. In those circumstances, the movement is faced with a decision: Does it challenge the illegality in the courts, despite knowing they are compromised? Does it challenge it outside of the courts? Or does it use a combination of multiple tactics?

Lastly, a movement (or its allies) may sometimes consider engaging in strategic litigation to advance the goals of the movement. This might be to challenge the constitutionality of repressive legislation or to push back on an incumbent seeking to extend their term of office. It is the most proactive of the three types of litigation and also often carries the largest risk and least likelihood of success when brought before a highly compromised court.  

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Nevertheless, a movement might still achieve its goal if it loses in court but wins in the “court of public opinion.” And on occasion, a movement may even secure an important legal victory in the courts — usually if the issue before the courts is tangential to an authoritarian regime’s stranglehold on power, rather than central to it, or where the court outcome merely gives a formal recognition of a bigger victory won on the streets.

Therefore, it’s essential for pro-democracy movements to thoughtfully and strategically consider how to engage with the judiciary in authoritarian contexts. I argue for adopting a “movement mindset” to litigation. This approach views litigation as an opportunity for building the broader movement and shifting power to the people.

Firstly, movements (and their allies in the legal profession) need to see litigation as just one tactic that can be used in combination with a whole arsenal of other tactics in service of a clearly defined strategic goal. Movements must conduct a strategic analysis on whether litigation fits into a broader campaign, and how to use it, before deciding if it’s an appropriate tactic. Even when the movement has no choice but to litigate (i.e. in defensive litigation), a strategic analysis must still be conducted to assess how the platform provided by the litigation can be harnessed in service of the movement’s goals.

Movements derive their power from their ability to organize and mobilize an increasing number of people to take part in nonviolent action. Litigation presents an opportunity to do precisely that. The court case provides an issue around which to organize and the courtroom itself provides a venue for mobilization. Even in authoritarian societies where it may be close to impossible to organize a public gathering elsewhere, courts are often still considered a public place and hearings are open to the public. Thus, people can gather in large numbers at court to attend a hearing without needing to seek permission from authorities.

Court solidarity — attending the trial of someone on the receiving end of lawfare — sends an important message to both the person on trial as well as the officials presiding over the trial. To the person on trial, it says: “We see you, we are with you, you are not alone.” This is key for building long-term resilience within the movement in the face of repression. To the officials presiding over the trial (the judicial officers and prosecutors), it says: “We see you, we are watching what you are doing, and we know you know it’s wrong!”

Through creative and strategic action, a movement can shift the narrative around a case and expose injustice and the brokenness of institutions meant to defend justice. This may prick the conscience of the individual actors involved in the abuse of the law. In some cases, this won’t be sufficient to actually stop the prosecution. But it some cases, it may and it has.

We might think of it like this: Officially, a judicial officer has a duty to uphold the rule of law and render justice in a case before them. But in an authoritarian state, there is often heavy top-down pressure on that judicial officer to ignore their legal duty, subvert justice and instead give a ruling that is favorable to the regime. This might be denying an activist bail (even when they are legally entitled to it) or convicting an activist of a crime they did not commit or allowing an incumbent to remain in power when legally they are not entitled to.

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Unless that top-down pressure is matched by bottom-up pressure from the movement, the unjust outcome may be almost inevitable. However, if the movement is able to build sufficient bottom-up pressure demanding that justice be upheld, it may be possible to extract a just ruling even from a compromised court. This dynamic played out in Zimbabwe with the surprising unconditional release of a movement leader, Pastor Evan Mawarire, after thousands of people rallied peacefully outside the court house where he was being held.

It is critical, though, that the bottom-up pressure from the movement is of a completely different nature to the top-down pressure placed on the judiciary by the regime. While authoritarian regimes use political control, financial inducements and intimidation to compromise the judiciary, a pro-democracy movement must never try to influence the courts in that way. This is because a movement must model the society it is seeking to create. Therefore, a movement should never seek to intimidate judicial officers but rather build judicial accountability. This can be achieved through accurate documentation and publication of court proceedings in language that does not inflame, but shifts public opinion and directs people towards action and disciplined court solidarity.

Another way to understand it is like this: Imagine three concentric circles. The middle one is a political decision, surrounded by a bigger circle representing political will, surrounded by an even larger circle representing the political climate. While the movement has no control (nor should it) over the decision a judge must make, and neither does the movement have control over the political will influencing that decision, movements do have the ability to shape the broader political climate. The movement must create a political climate in which the judiciary feels accountable to the people. Judges should also feel undergirded by the support of the people if they uphold justice and defend the rule of law, even when such a decision may be unpopular with those in power.

In Poland, judges actively resisted efforts by the government to undermine their independence — but only after they saw an immense outpouring of support by Polish citizens. In February last year, a Senegalese court blocked the then-incumbent president’s bid to delay an election and extend his term of office — but only after thousands rallied in the streets creating a political climate in which the judges were bold enough to rule against president.

The courts are a significant pillar of support to most authoritarian regimes. Litigation provides an opportunity to engage with that pillar, to better understand the opponent, to extract defections and sometimes even strategic wins. It’s unlikely that the courts will be the decisive battleground in a struggle against authoritarianism. Yet they remain an often-unavoidable theater of struggle, which can be devastating to a movement if used effectively by an authoritarian regime, and are also pregnant with opportunities for movement building if engaged strategically by adopting a “movement mindset” to litigation.

This article How movements can make courts play their role in defending democracy was originally published by Waging Nonviolence.

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Source: https://wagingnonviolence.org/2025/02/movements-can-make-courts-play-role-in-defending-democracy/