Neither law nor fair
Manipulative interpretation of legal provisions mounts to the detriment of democracy
In recent years, the use of legal tools to entrench power, sideline opposition and gain advantage over political opponents has gained ground in Africa. Known in academia as ‘lawfare’, the phenomenon often manifests in term-limit manipulations, judicial reshuffles and procedural exploitation to sustain power. It has emerged in countries such as Tanzania, Zambia, Democratic Republic of the Congo (DRC), Zimbabwe and Togo.
Among other things, the trend threatens public trust in democratic institutions and erodes the achievement of the even political field central to attaining good governance. Tackling lawfare has become important and indispensable in curtailing the rising trend of democratic backsliding. This is amid the African Union (AU) focus on finding lasting solutions to political manipulation and advancing the good governance goals espoused in the African Charter on Democracy, Elections and Governance.
Lawfare in Africa
Lawfare manifests differently in different countries. A recent core thread, however, is the manipulation of interpretations of legal provisions that define certain crucial dimensions of political power. This not only applies increasingly to overt constitutional amendments, but plays out in ambiguous legal provisions. In the latter cases, institutions apply or interpret laws to tilt the political scale in favour of incumbents.
One manifestation of this trend is the use of legal processes to exclude opposition parties from electoral processes under the guise of non-compliance with electoral laws. In Tanzania, the Independent Electoral Commission disqualified the main opposition party, Chama Cha Demokrasia(Chadema), ahead of the October 2025 elections for refusing to sign a new electoral code of ethics.
Tackling lawfare is essential to curtail the rising trend of democratic backsliding
While Section 162 of the Elections Act (2024) No 1 mandates compliance, neither the constitution nor the commission’s mandate explicitly grants the power to disqualify parties on that basis. Yet the law was reinterpreted to exclude the Chadema candidate. Although it does not come across as having broken the country’s laws, the situation has granted a political advantage to the ruling party and set the precedent for weaponisation of that provision and similar ones.
The phenomenon also shows up in contradictory rulings by judicial institutions that sometimes point to underlying political interests. In Zambia, the 2018 constitutional court ruling that then-president Edgar Lungu’s first term did not count towards the two five-year term-limit after he had appointed several judges to the bench raises important questions.
It became clearer that the ruling, which would have allowed him to run for a third term by bypassing the constitution, had been subject to manipulation when in 2024, under a new administration, the same court ― with several judges removed – reversed the ruling that had favoured Lungu. It instead blocked him from contesting the 2026 election, insisting that his 2015/16 term counted as a term. Removing this key opponent has given President Hakainde Hichilema an advantage. While both decisions had legal bases, the lack of consistency in the two has inadvertently exposed the manipulative use of legal provisions and their associated rulings to gain political advantage.
Resetting term limits, reframing powers or overhauling the system to entrench incumbents are common
A common underlying variable in these examples is the conscious exploitation of ambiguity in legal provisions to scuttle fair competition. Rather than violating the law outright, incumbents operate within uncertain boundaries to exploit loopholes, time appointments to neutralise opposition, favour legal outcomes or selectively enforce regulations. This makes lawfare harder to detect and even harder to counter. The result is a growing threat to democratic accountability across the continent.
Overt manifestations
A more overt manifestation of lawfare is evident in constitutional review processes and the redesign of institutional frameworks to entrench incumbents in power. This recalibration of governance frameworks often preserves a surface-level adherence to procedure while aiming at parochial outcomes advancing the political goals of certain individuals. Consequently, although legal processes use parliamentary votes or referendums, they hardly adhere to the spirit of the constitution. A recurring pattern is resetting term limits, reframing executive powers or overhauling the political system to favour incumbents.
This has happened in countries such as the DRC, Zimbabwe, and Togo. In the DRC, President Félix Tshisekedi announced plans to reform and ‘Congolicise’ the constitution owing to perceptions that the current 2006 constitution is a result of international mediation. His critics, however, believe this is a veil for a third-term bid. In Zimbabwe, although President Emmerson Mnangagwa has denied seeking a third term, recent statements by Justice Minister Ziyambi Ziyambi about ‘clarifying’ the constitution have raised questions and protests from opposition groups. The transformation of Togo’s presidential political system into a parliamentary one without direct presidential elections allows the incumbent-dominated legislature to secure the stay of the president.
Mechanisms are often applied reactively rather than preventively due to how lawfare is analysed
In these cases, the letter of the law is observed – through parliamentary votes and adherence to amendment procedures – but the spirit of the constitution is often undermined by the outcomes achieved. Term-limit protections are steadily eroded.
Dangers of the trend
The phenomenon is quietly eroding inherent checks and balances in political institutions, repurposing courts and legislatures for partisan ends and blurring the line between legality and manipulation. In so doing, it is setting precedents that will undermine the integrity of political institutions and the fairness of contests.
This can be destabilising. In Zimbabwe, weariness over third-term angling has strained relations with war veterans and sections of the security sector crucial to regime stability. In the DRC, the trend is diverting Peace and Security Council (PSC) attention from urgent developments such as the ongoing conflict in the east. In Togo, it risks inflaming already fragile civil-military relations and mistrust in state institutions in Burkina Faso, Mali and Guinea.
Addressing the situation
The AU has strong normative tools to deal with the situation given political will. The African Charter on Democracy, Elections and Governance, particularly Article 23(5), explicitly prohibits constitutional amendments and revisions contrary to the principles of democratic change of government. The enforcement of these provisions, however, remains selective and subject to limited political will. The PSC, mandated by Article 7 of its protocol, has acted only in cases such as Burundi’s 2015/16 third-term crisis, where communiqués 523, 531, 551 and 557 attempted to mediate President Pierre Nkurunziza’s bid. In subtler forms of lawfare, where legality carefully masks democratic backsliding, the Council has remained largely inactive.
Mechanisms are often applied reactively rather than preventively, due largely to lawfare not being placed in the annual state of peace and security report to the AU Assembly. Thus, its focus is limited to monitoring and associated early warning that can be triggered. The PSC could expand the AU’s bi-annual election reporting to include interim developments and trends in the conscious manipulation of legal provisions. This could raise awareness and bring issues onto the Council agenda before democratic erosion deepens.
This, in turn, will help track the increasing sophistication of the phenomenon and provide the basis for a proactive response. Without more assertive action, the continent risks a future where democracy dwindles not through tanks in the streets, but through the quiet turning of legal gears.
