Undue Process: Persecution and Punishment in Autocratic Courts 1009197134, 9781009197137

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Undue Process

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, Fiona Feiang 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 finegrained 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. fiona feiang shen-bayh is an assistant professor of government at William & Mary.

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CA M B R I D G E S T U D I E S I N L AW A N D S O C I E T Y

Founded in 1997, Cambridge Studies in Law and Society is a hub for leading scholarship in socio-legal studies. Located at the intersection of law, the humanities, and the social sciences, it publishes empirically innovative and theoretically sophisticated work on law’s manifestations in everyday life: from discourses to practices, and from institutions to cultures. The series editors have long-standing expertise in the interdisciplinary study of law, and welcome contributions that place legal phenomena in national, comparative, or international perspective. Series authors come from a range of disciplines, including anthropology, history, law, literature, political science, and sociology. Series Editors Mark Fathi Massoud, University of California, Santa Cruz Jens Meierhenrich, London School of Economics and Political Science Rachel E. Stern, University of California, Berkeley A list of books in the series can be found at the back of this book.

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Undue Process Persecution and Punishment in Autocratic Courts

F I O NA F E I A N G S H E N - BAY H William & Mary

Published online by Cambridge University Press

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781009197137 doi: 10.1017/9781009197151 © Fiona Feiang Shen-Bayh 2022 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2022 A catalogue record for this publication is available from the British Library. isbn 978-1-009-19713-7 Hardback isbn 978-1-009-19714-4 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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For Baba.

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Contents

List of Figures List of Tables

page ix xi

Acknowledgments

xiii

1

1 3 5 10 14 18 24 26

The Process of Punishment The Puzzle of Political Trials Existing Explanations A Theory of Judicial Repression Contributions Case Selection Overview of the Book A Theory of Judicial Repression 2.1 Rethinking Repression: Violence and Punishment in Perspective 2.2 The Theory: Explaining Judicial Repression 2.3 Observable Implications Reading a Judicial Ritual 3.1 Background: Rise of a One-Party State in Kenya 3.2 A Judicial Ritual to Restore Order and Obedience 3.3 Demonstrations of Loyalty as the Trial Comes to a Close 3.4 Alternative Explanations 3.5 Beyond Kenya Who Goes to Trial? 4.1 Threats to Autocratic Survival: Coup Plots 4.2 Data on Coup Plots in Postcolonial Africa 4.3 Testing Who Goes to Trial 1.1 1.2 1.3 1.4 1.5 1.6

2

3

4

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29 31 52

54 55 58 70 74 78 80 82 84 99

Contents

viii 4.4 4.5

5

6

7

Trial and Posttrial Outcomes Conclusion Appendix 4A

103 107 108

5.1 5.2 5.3

Pathways of Punishment The Case of Tanzania The Case of Sierra Leone Pathways of Punishment in Perspective

110 113 131 150

A Cooperative Judiciary 6.1 Background: Colonial Origins of Postcolonial Courts 6.2 Dilemmas of a Professionalized Judiciary 6.3 Cross-National Patterns of Judicial Cooperation 6.4 When Professionalization and Partisanship are Misaligned 6.5 Expanding the Jurist Pool Beyond Africa 6.6 Conclusion Conclusion 7.1 Main Findings 7.2 Avenues for Future Research 7.3 Implications for Due Process in Emerging Democracies

152 154 163 167 170 175 190 192 193 196 201

Bibliography Index

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205 213

Figures

3.1

Front page story from The Daily Nation, a Kenyan newspaper, detailing Mutiso’s detention and impending trial page 63 3.2 Front page story from The Daily Nation, a Kenyan newspaper, urging Kenyans to attend the June loyalty rally 71 4.1 Unsuccessful coups: Data from McGowan and Cline Center 87 4.2 Unsuccessful coups: Data collected by author from shadow archives 91 4.3 Distribution of coup plots by age of regime 92 4.4 Plot size by country 93 4.5 Documents from the British National Archives on treason trials in Sierra Leone 95 4.6 Documents from the British National Archives on political detainees in Uganda 97 4.7 Distribution of repression tactics 97 4.8 Bivariate distribution of challenger-type and repression strategy 100 4.9 Likelihood of going to trial 101 4.10 Likelihood of going to trial 102 4.11 Sentencing patterns 105 5.1 Timeline of select events in Tanzania, 1961–1971 130 5.2 Timeline of select events in Sierra Leone, 1961–1971 150 6.1 Timeline of chief justices in postcolonial British Africa 161

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List of Figures

x

6.2 6.3 6.4

Court compliance rate by decade Compliance rate by decade Soliciting expatriate jurists

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162 170 178

Tables

4.1 Guilty verdicts by country 4A.1 Repression strategy by challenger type: Ruling party, military, opposition 4A.2 Repression strategy by challenger type: Defectors vs. never defectors 4A.3 Repression strategy by challenger type: Excluding large outlier plots 6.1 Verdicts in political trials by chief justice-type 6.2 Resident magistrates in Malawi, 1968

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page 104 108 108 109 169 181

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Acknowledgments

It is difficult to put into words what this book means to me. It has been an anchor during periods of considerable uncertainty and change in my life, including new jobs, cross-country moves, and even a pandemic. While writing a book is often a solitary endeavor, I would never have been able to carry it across the finish line without the support of a wide community of colleagues, friends, and family. This project began as my dissertation at the University of California, Berkeley, under the supervision of Leonardo Arriola, Jason Wittenburg, TJ Pempel, and Aila Matanock, each of whom played a formative role in my development as a political scientist. I am particularly grateful to Leo, my chair, for guiding me through this process well beyond the filing of my dissertation. Leo’s unparalleled mentorship and impeccable sense of humor helped me overcome many seemingly insurmountable challenges; I hope that one day I can be just as good an advisor to others as he has been to me. As a graduate student and later postdoctoral fellow, I received support from a variety of friends and colleagues, including Nancy Bermeo, Katlyn Carter, Chris Chambers-Ju, Natalia Forrat, Siri Gloppen, Allison Grossman, Nahomi Ichino, Brian Klein, Guoer Liu, Anne Meng, Susanne Mueller, Noah Nathan, Jeffrey Paller, Anne Pitcher, Lise Rakner, Dan Slater, Paul Thissen, and Lauren Young. I also owe a deep debt of gratitude to Mai Hassan, whose intellect, encouragement, and generosity have both elevated and inspired my work in so many ways. My research was generously funded by the National Science Foundation, the Institute of International Studies and the African Studies Center at the University of California, Berkeley, and the Weiser Center xiii

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xiv

Acknowledgments

for Emerging Democracies at the University of Michigan. With their financial support, I was able to travel to archives in England and interview legal practitioners in Kenya and Malawi, which critically informed my understanding of judicial repression in historical perspective. Amanda Robinson, Ellen Feingold, Rachel Ellett, and Jason Klocek gave helpful advice in preparation for these trips and made my time abroad more productive as a result. With the generous support of William & Mary, I was also fortunate to host a book workshop where I received insightful feedback from Jennifer Gandhi, Jeffrey Staton, Nic van de Walle, Phil Roessler, Paula Pickering, and S. P. Harish. I am grateful to each of them for engaging so deeply with the project–efforts that were instrumental toward improving my final manuscript. Several people helped prepare this book for publication, including Rachel Blaifeder, Jadyn Fauconier-Herry, Julian Montague, Vivian Unger, and Sue Peterson. I am particularly indebted to Jaime Settle, who helped get my work out the door, and Sara Doskow, who went above and beyond to ensure that my manuscript was pushed forward at Cambridge University Press. Mark Massoud and Rachel Stern were also extremely supportive editors who encouraged me to finish the book as I had envisioned. Turning a dissertation into a book is never easy, but the process is more feasible (and even enjoyable) when done in the company of friends who are working toward the same goal. Danny Choi and Guadalupe Tuñón were instrumental in helping me figure out some of the most challenging components of the book; being able to talk through vexing questions, test out new ideas, and commemorate milestones were some of the brightest moments of this long, uncertain process. Justine Davis was also an endless source of support and hilarity, providing confirmation that my logic was clear and my figures were legible. At various stages of this project, I was lucky to have friends both near and far who helped me relax and recharge. After long, solitary days at the archives, Shouvik Bhattacharya and Adhira Mangalagiri welcomed me into their lives and provided me a home away from home. When I later endeavored to put all the pieces together, Claire Anderson, Natalie Ahn, Gabrielle Elul, Risa Kitagawa, Tanu Kumar, and Salley Rowe provided welcome distraction from endless writing, often reminding me to celebrate victories as they came. I appreciate their friendship more than words can say. On this note, special mention goes to Shinhye Choi. This book would not be what it is without her scrupulous eye: No one has read my manuscript as closely and as critically. I have often joked that Shinhye

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xv

has been a shadow advisor on this project, but the reality is that she has played a central role in pushing me to think harder, clearer, and deeper. Shinhye saw the finish line before I did and cheered me toward it. Last but certainly not least, there are only two people who are prouder than I am of this book: my parents Nan Shen and Tom Bayh. For my mother, education has always been paramount and her sacrifices have afforded me opportunities that would have otherwise been unimaginable. As for my father, he has always seen the bigger picture. All of his advice, both solicited and unsolicited, has been geared toward helping me move forward. His confidence that I would get this done, especially when I myself did not believe that I could, is the kind of unconditional love that you only get from your Baba. This book is dedicated to him.

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1 The Process of Punishment

What, after all, is a political trial? It is a trial in which the prosecuting party, usually the regime in power aided by a cooperative judiciary, tries to eliminate its political enemies. —Judith Shklar, Legalism: Law, Morals, and Political Trials

One of the most striking trends of modern authoritarianism is the extent to which power has been consolidated through law. Across the globe, autocrats have routinely invoked legal procedures to justify arbitrary rule – measures ranging from elections, to parliamentary procedures, to constitutional referendums.1 In this seemingly legalistic world order, courts have unsurprisingly emerged as a prominent forum to adjudicate conflict and contest power. But when courts become sites of autocratic contestation, the proceedings that ensue often bear little resemblance to how courts operate in functioning democracies. This is especially true wherever autocrats invoke the institutions of criminal justice for repressive ends, a practice sometimes referred to as “persecution through prosecution.”2 In such cases, the overriding objective is not to adjudicate innocence or guilt of the accused, but rather, in the words of Judith Shklar, to “pursue a very specific policy—the destruction, or at least the disgrace and disrepute, of a political opponent.”3

1 Albertus and Menaldo (2012); Huq and Ginsburg (2018); Scheppele (2018); Waldner and

Lust (2018).

2 Amnesty International (2017).

3 Shklar (1964), p. 149.

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Such tactics are often used against high-profile political operatives, as was the case in 2013 when Bo Xilai, a once rising star within the Chinese Communist Party, had his political fortunes quickly reversed after he was accused of crimes against the Chinese state. By the end of the trial, Bo’s conviction and life sentence cemented what many observers had already suspected since his initial indictment: that his political future was over. Harsh measures were similarly undertaken in Iran when a controversial prosecutor and ally of former president Mahmoud Ahmadinejad was found guilty of abuse of public office and sentenced to 135 lashes.4 The timing and targets of these cases are often significant, as when former prime minister of Pakistan Nawaz Sharif and his daughter were both found guilty of corruption and sentenced to 10 years in prison in 2018 – less than three weeks before the national elections.5 As for Bo Xi Lai, his conviction came mere months before a historic transition of power within the standing committee of the Chinese Politburo. The often predictable outcomes of these cases have fueled suspicions among human rights observers that by bringing their rivals to court, autocrats are simply masking political purges as judicial ones. In so doing, contemporary autocrats are invoking routines reminiscent of more extreme historical episodes of judicial persecution and punishment. Consider the infamous Moscow trials of the Soviet Union, wherein opponents of the regime were ritualistically humiliated for their alleged crimes against the state. These show trials were the judicial centerpiece of Joseph Stalin’s Great Purge in which “factional power struggles and political differences were ‘solved’ not only with the physical liquidation of the loser, but also with his political murder” or the “assassination of his character.”6 Meanwhile in Nazi Germany, the people’s court was specifically erected to mete out harsh, punitive justice against so-called enemies of the state; virtually all trials ended in the death penalty for the accused. To facilitate this repressive agenda, the court operated outside of the confines of normal constitutional law and exercised considerable jurisdiction over a range of petty and political offenses.7

4 Iran Ex-Prosecutor Sentenced to 135 Lashes for Corruption. (2016, November 2). BBC.

https://www.bbc.com/news/world-middle-east-37851724

5 Constable, P. (2018, July 6). Pakistan opposition leader arrested in corruption case. The

Washington Post. https://www.washingtonpost.com/news/worldviews/wp/2018/07/06/ pakistan-court-convicts-former-prime-minister-sharif-in-corruption-case/ 6 Hodos (1987), p. 5. 7 Geerling et al. (2017).

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Both then and now, the use of courts for repressive ends suggests that the institutions of law and justice need not keep autocratic impulses in check but can instead facilitate its worst excesses. And yet, while the legal and judicial underpinnings of autocracy have deep, expansive roots, there remain gaps in understanding of how such systems came to be. Particularly puzzling is why autocrats opt to “judicialize” the process of punishment when there are far more expeditious ways of dealing with political rivals. That is, if a judicial purge is merely a political one in disguise, then it begs the question of why conceal such practices in the first place – especially when the outcomes are virtually the same. The questions animating this book focus directly on the role that courts play in strategies of autocratic survival: Why do autocrats bother holding a political trial when the outcomes are assumed to be known from the start? Why do autocrats use judicial procedures to repress in some cases but extrajudicial strategies in others? What are the goals of going to court and by what mechanisms are these goals achieved? Do autocrats face risks by going to court, and if so, how do they ensure that trials go as planned? This book approaches these questions from a variety of analytical perspectives and intellectual traditions, using a combination of political, socio-legal, and historical lenses to produce a more panoramic view of repressive justice and political control. In the remainder of this chapter, I examine the puzzle of political trials and consider existing explanations for judicial strategies of punishment in autocratic regimes. I then introduce a theoretical framework to explain why autocrats use courts to repress, who they are more likely to bring to trial, and how they ensure that the desired outcomes of court come to pass. After laying out the main argument, I highlight the book’s core contributions, describe the empirical strategy, and finally conclude by laying the road map for the remaining chapters.

1.1 the puzzle of political trials The notion that autocrats would use courts for undemocratic ends is, on the surface, unsurprising. Indeed, it is to be expected that autocrats will attempt to manipulate the judicial process whenever the stakes of adjudication are high. Due process in autocratic courts should thus not be taken at face value; to be even accused of crimes against the state usually means that one’s days are numbered. However, the real puzzle is not how such trials will end, but why autocrats conduct them in the first place. Consider the treatment of the

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notorious chief of secret police Lavrenti Beria following Stalin’s death in March of 1953. With Stalin gone, a vicious struggle for control of the Soviet Union ensued, the two leading contenders being Beria and Nikita Kruschev, the latter of whom was a prominent member of the Politburo with a sizable faction behind him. When the balance of power shifted against Beria and in favor of Kruschev, Beria was promptly arrested. He remained in detention until his trial for treason in December 1953, whereupon he was tried, convicted, and executed in a single day. The decision to prosecute Beria was a curious one considering that there were far more expeditious ways of eliminating enemies of the state – many of which had been engineered by Beria himself. In fact, in his capacity as Stalin’s head of security services, Beria had been responsible for an unprecedented extrajudicial campaign of terror across Soviet society, involving the arbitrary detention, torture, deportation, and killing of countless citizens. Though Beria’s punishment ensured that he met the same violent end as his former victims, given this tradition of violence that Beria himself had helped build, it is not immediately obvious why the state opted to take the extra step of conducting a trial before carrying out his execution. The phenomenon of political trials is even more puzzling when we consider the risks of going to court. Particularly concerning for autocrats are cases that draw negative publicity to the regime and may help the target of prosecution garner sympathy for their cause. So describes the case of Alexi Navalny, a vociferous critic of Russian president Vladimir Putin whose controversial treatment at the hand of the Russian state has generated widespread attention to intra-elite politics and government corruption. Since the late 2000s, Navalny’s efforts to expose public malfeasance have made him the repeated target of criminal prosecution, including convictions for fraud and embezzlement that were seen by many as politically motivated.8 While these judicial efforts prevented Navalny from running for local office, they did little to silence his campaign against Putin. In fact, these proceedings arguably boosted his profile: As he was being prosecuted again in January 2021 following a failed assassination attempt that has been pinned on the Federal Security Service,9 Navalny’s team released

8 Alexei Navalny: Russia’s vociferous Putin critic. (2021, April 21). BBC. https://

www.bbc.com/news/world-europe-16057045

9 Toler, A. (2020, December 14). Hunting the Hunters: How We Identified Navalny’s

FSB Stalkers. Bellingcat. https://www.bellingcat.com/resources/2020/12/14/navalny-fsbmethodology/

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a Youtube video about state corruption that was viewed over 117 million times.10 In February 2021, Nalvany was sentenced to prison by a Russian court, a decision that mobilized tens of thousands of his supporters to protest across Russia and led to violent crackdowns by the state.11 The European Union and the United States responded by imposing sanctions on the Russian government for poisoning and imprisoning Navalny.12 The Navalny case illustrates the dangers of judicializing repression: By bringing political conflict out into the open, a judicial process may help turn political opponents into political martyrs. This suggests that political trials do not always deliver punishment as intended and may even be counterproductive for the regime. The question is why, given these risks, would autocrats bother with the fanfare of a trial when there are less conspicuous ways of dealing with elite threats? What value do judicial proceedings provide that arbitrary detentions or extrajudicial killings do not?

1.2 existing explanations Among scholars of authoritarian politics, theories of why autocrats judicialize the process of punishment have been dominated by two competing explanations: concealment and coordination. In essence, concealment theories suppose that courts merely cloak the true nature of repression, whereas coordination theories posit that courts impose real constraints on arbitrary rule. Each logic has fundamentally different implications for how judicial proceedings should be interpreted. If the intent of a trial is to conceal, we cannot take its proceedings at face value; whatever happens in court is a farce because real decision-making happens behind closed doors. However, if the intent of a trial is to show the willingness of autocrats to tie their own hands or to impose constraints on their decision-making, then judicial proceedings should be taken seriously. In this section, I briefly summarize each logic and outline what remains missing from these explanations.

10 Putin’s palace. History of world’s largest bribe. YouTube. https://www.youtube.com/

watch?v=ipAnwilMncI, accessed June 22, 2021.

11 Women Form Human Chains in Russia in Support of Navalny’s Wife. The Guardian

(2021, February 14). https://www.theguardian.com/world/2021/feb/14/navalnysupporters-to-defy-kremlin-and-hold-candelit-protests-russia 12 Blinken, A. (2021, March 2). Imposing Sanctions on Russia for the Poisoning and Imprisonment of Aleksey Navalny. https://www.state.gov/imposing-sanctions-on-russiafor-the-poisoning-and-imprisonment-of-aleksey-navalny/

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1 The Process of Punishment 1.2.1 Concealment Theories

The central premise of concealment theories is that courts and other legal instruments serve as “window dressing” to cloak repressive behaviors.13 By this logic, rather than openly terrorize the population and risk opprobrium on the global stage, autocrats prefer to portray themselves as competent and public-spirited leaders, mimicking rational-legal ideals without sincerely embracing them.14 But openly espousing these ideals can backfire for autocrats, too. For example, if autocrats promote rule of law rhetoric but continue to commit extrajudicial violence, they risk undermining the civic-minded image that they were attempting to cultivate in the first place. Concealment strategies speak to the phenomenon of “democratic backsliding,” a catch-all term describing a wide range of processes by which would-be autocrats debilitate or repurpose democratic institutions for autocratic goals.15 These practices have become increasingly de rigueur in the age of electoral autocracies such that leaders are often compelled to legitimize their rule under the pretense of free elections, popular referendums, and the right to a fair trial.16 Bermeo (2016) and Waldner and Lust (2018) observe that contemporary forms of backsliding are especially insidious because they operate entirely in accordance with the law, which limits the ability of dissenters to fight back through those same legal channels. Indeed, by combining the institutional attributes of democracy with the logic of authoritarianism, leaders can effectively chip away at human rights and political freedoms in plain sight. The logic of concealment offers a reasonable intuition for why autocrats bring conflict to court, but it is important to recognize the limits of this kind of explanation. In particular, the notion that political violence is costly and therefore must be concealed is a relatively recent one; it partly reflects shifting norms about human rights that only began to carry weight in the latter half of the twentieth century.17 As Guriev and Treisman

13 Ginsburg and Moustafa (2008); Ginsburg and Simpser (2013). 14 Rajah (2011) refers to this phenomenon as “urbane authoritarianism,” wherein autocrats

shy away from over coercion. Law here offers a form of cover by “[encoding] and [concealing] ideology and relations of power.” See also Guriev and Treisman (2019). 15 Bermeo (2016). 16 Magaloni (2008). 17 Though the human rights movement gained traction in the 1960s, Cold War considerations ultimately limited the impact of such efforts, meaning that systematic campaigns to sanction repressive regimes did not materialize until the turn of the century.

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(2019) argue, the need to camouflage violence has grown more important with the proliferation of information technologies and the spread of the global human rights movement, factors that should raise the political costs of violence for autocrats. But judicial strategies of repression predate these developments; autocrats have long relied on courts as sites of political persecution and attempted to turn the machinery of criminal justice against threats to their survival, patterns that emerged well before the information revolution and the age of electoral autocracies. The show trials of Stalinist Russia, for example, cannot be explained by the desire to cloak or legitimize persecution as due process; the oppressive outcomes of these proceedings were always meant to be seen.18 Furthermore, if the goal is to hide the true nature of political violence, then it is not immediately obvious why autocrats would opt for a judicial process when there are more discreet forms of punishment at their disposal. Many forms of extrajudicial repression, including arbitrary arrests and summary detentions, can be executed in ways that draw far less scrutiny than political trials. This is not to say that information about extrajudicial violence can be entirely suppressed or ignored, but rather that attention to such practices can wane quickly when they are more hidden from the public eye. This highlights a key conundrum of concealment theories: It is unclear whether political trials actually conceal anything.19 Pro-democracy groups have frequently condemned such cases as flagrant abuses of the criminal justice system for partisan ends and harbor no illusions that due process will be granted to the accused. After all, “persecution as prosecution” was a phrase coined by the human rights community and has become a popular rallying cry whenever such cases come to court, which suggests that political trials have done little to quell criticism among outside observers. Opposition supporters likewise seem utterly unconvinced by the legitimacy of these proceedings, especially when the target of prosecution is a high-profile opponent to the regime. Such cases have been widely interpreted as witch hunts based on trumped up charges, not the rational-legal models of adjudication that concealment theories would suggest. 18 Hodos (1987). 19 The rather flimsy attempts to hide undemocratic behaviors also apply to autocratic

elections, particularly when vote share for the incumbent nears 100 percent (Magaloni, 2008).

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The reality is that whenever individuals are brought to trial, their treatment by the state is brought to the fore in ways that are not necessarily advantageous for autocrats. There is thus little evidence to support the claim that bringing conflict to court helps mask or legitimate repressive behaviors; it may in fact do the opposite. And if audiences do not believe that judicial institutions are being used properly, judicializing punishment can garner more negative attention to repressive practices. The longer such proceedings take to unfold, the more opportunities for both domestic and foreign critics to scrutinize (and potentially find fault with) the conduct of courts. 1.2.2 Coordination Theories In contrast to concealment theories, coordination theories contend that courts do not disguise the true nature of punishment but instead deliberately bring it out into the open, albeit in a tightly controlled fashion. Many of these theories begin with a simple premise. As Chwe (2013) writes, “submitting to a social or political authority is a coordination problem: each person is more willing to support an authority the more other support it.”20 Myerson (2008) builds upon this logic to explain how courts can be used to coordinate support for the ruler. The court in his model is a literal meeting place for members of the ruling elite to observe how the ruler treats one of their own. Once assembled in court, the ruler can show his supporters that he is willing to abide by predetermined rules and procedures when deciding standards of appropriate (or inappropriate) behavior. Exercising such restraint signals to other elites that the ruler’s commitments are credible, which is the basis of effective power sharing in autocratic regimes. A court thus operates similarly to other institutions of elite cohesion, that are designed to establish credible commitments or “contracts” between autocrats and their supporters.21 A robust body of scholarship on these themes has primarily focused on autocratic parties, cabinets, legislatures, bureaucracies, and constitutions; that is, nonjudicial institutions.22 These works have shown that the credibility of these

20 Chwe (2013), p. 19. 21 Myerson refers to courts as a “minimal constitutional structure” between rulers and their

supporters.

22 Albertus and Menaldo (2012); Gandhi (2008); Ginsburg and Simpser (2013); Slater

(2010); Wright (2008).

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commitments often hinge upon the autocrat’s willingness to make meaningful concessions to their supporters or impose real constraints on their authority. This logic readily extends to the judicial sphere, wherein a court provides an ideal venue for autocrats to put their claims into practice by showing other elites how they will all be treated “equally” under the law – as long as they stay loyal to the autocrat. A common theme linking coordination theories is the idea of autocratic restraint, mainly that autocrats can reinforce support for their authority by cooperating with or making concessions to other elites. But maintaining elite cohesion often demands more than just buying goodwill; it also involves punishing malfeasance. For example, when autocrats purge cadres from the ruling circle (stripping them of party membership or lucrative government portfolios), they not only reveal their capacity to inflict violence on one of their own; they also reveal the bounds of permissible behavior, which serves as a reminder to others of what can happen if they too fall out of line. Thought of in these terms, a public purge affects both the individual being punished as well as the audience of other elites who might be punished in future. This logic helps explain why such attacks are often performed out in the open, such as the infamous Iraqi Ba’ath Party purge of 1979 that was conducted before a live assembly of politicians and was even televised for a broader audience.23 Dramatic roundups of political elites have occurred elsewhere in places like Turkey and Saudi Arabia where the visibility of these procedures ensures that even those who are not directly implicated are still able to witness the purging of others.24,25 Purges are particularly conspicuous acts of elite retribution that are often invoked capriciously. But autocrats can also institutionalize the process of punishment by turning the sanction of elite agents into a criminal justice procedure. Codifying punishment shifts the venue of violence from the public assembly to the courtroom, transforming “public violence of

23 In this infamous episode, newly installed President Saddam Hussein shocked an assembly

of Ba’ath Party leaders by announcing that more than sixty individuals who were sitting before him in the assembly had conspired to overthrow him. As each alleged coconspirator was named, they were escorted out by armed guards. 24 Editorial Board. (2016, July 16). The Counter-Coup in Turkey. The New York Times. https://www.nytimes.com/2016/07/16/opinion/the-counter-coup-in-turkey.html 25 Leber, A. and Carothers, C. (2017, November 15). Is the Saudi Purge Really About Corruption? Lessons From China. Foreign Affairs. https://www.foreignaffairs.com/articles/ china/2017-11-15/saudi-purge-really-about-corruption

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the King” into “a juridical process of the law.”26 Routinizing this process can also be a powerful tool of elite discipline, whereby discipline entails the creation of “docile bodies” through conditioning or coercion.27 And cultivating docility can be fundamental for maintaining regime cohesion, since a disciplined agent is one who can be relied upon to comply. Yet, the disciplinary dimensions of autocracy remain undertheorized. Scholars of punishment have largely focused on the disciplinary dimensions of democracy, where the evolution of crime and punishment in the Western world has been primarily analyzed through a socio-legal lens.28 Meanwhile, scholars of autocratic institutions have tended to conceptualize punishment as an act of arbitrary repression – a measure of last resort to be used when institutions of power sharing break down.29 But just as autocratic institutions can be used to share the spoils of power, so too can they be used to punish and purge. And the power of codified punishment is often its repetition, which over time generates expectations for how disobedience will be treated.30 This discussion suggests that institutionalizing punishment can help maintain elite cohesion by ensuring that all acts of insubordination receive the same penalty. However, autocratic rule is by definition arbitrary. Why should we expect autocrats to apply the same set of rules for all? Even as autocrats signal their intention to uphold law and order, punishments can still be more institutionalized for one group than another. To what extent are such differences strategic? And does differential treatment have implications for broader strategies of repression both in and out of court?

1.3 a theory of judicial repression In this section, I outline a theoretical framework that explains why autocrats judicialize the process of punishment and when they are more likely to do so. In particular, a theory of judicial repression needs to consider the function of a political trial, who is more likely to be subjected to this process, and how autocrats actually ensure that such proceedings go according to plan. 26 As Foucault (1979) explains, rather than bloody the body, the state condemns the soul

of the criminal.

27 Foucault (1979). 28 Seminal scholarship in this field have uncovered the disciplinary power of the law to the

sociology of Western penitentiaries (Garland, 2012).

29 Svolik (2012). 30 As Foucault (1979) observed, punishment’s “effectiveness is seen as resulting from its

inevitability, not from its visible intensity.”

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1.3.1 The Function of Trials Why do autocrats conduct political trials? In essence, taking political rivals to court enables autocrats to institutionalize the process of punishment. But in contrast to existing theories of coordination, I argue that judicializing punishment is more about enforcing consequences than offering concessions. That is, rather than impose meaningful constraints on authority, my claim is that a trial serves as an explicit demonstration of the consequences of violating the autocrat’s rules. To understand how this process works, it is useful to consider a political trial as a kind of formal performance or ceremony of justice. The ceremony typically begins with an indictment against a political rival that spells out the nature of their alleged offense. The state then brings the accused to court whereupon it lays out its allegations before a judge. At the end of these proceedings, the judge delivers their verdict regarding the guilt or innocence of the accused. This sequence of indictment, adjudication, and judgment constitutes a judicial ritual, one which is familiar, repeated, and routine. However, in a political prosecution, the underlying goal is not necessarily to elucidate the facts of the case nor to ensure due process for the accused; it is to use the language of the law and the procedures of court to establish in no uncertain terms the consequences of violating the rules of political order – that is, of defying the autocrat’s authority. To the extent that this process of trial and punishment is oft repeated, we can say it has become institutionalized. The fact that this ritual is conducted in court is significant. A court is a space for individuals to observe not just the trial and punishment of the autocrat’s rivals, but perhaps more crucially, to observe that these proceedings are witnessed by others. Assembling an audience in court thus ensures that each member of the crowd sees other members observing the same story at the same time. Regardless of whether anyone truly believes this story to be true, to see others act as if these proceedings are credible can compel individuals to act as if they agree.31 In short, obedience to authority can be reinforced by the mere supposition of others’ obedience. Performing this ritual before a wider audience helps generate common knowledge that conflict has a clean and tidy resolution (the defendant’s conviction), which implies that rivalries within the regime have been 31 Wedeen (1999) explores the politics of “as if” in Syria where individuals routinely

participate in elaborate, often preposterous ceremonies of devotion to Assad, not because they truly believe in the message of these rituals, but rather because they are compelled to by the fact that others are complicit.

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effectively defused. The explicit, methodical, and largely predictable nature of these proceedings are an important driver of shared expectations. With this understanding in mind, was the guilty verdict against Beria after the death of Stalin really a foregone conclusion? Or was this expectation engendered by the careful delivery of a judicial ritual, such that by the end of the trial, conviction appeared inevitable? By this logic, political trials neither conceal acts of violence nor coordinate others around the idea that they will be treated equally; instead, they convey the unwavering message (and presumably widely shared belief) that rebellion against the autocrat is not only doomed to fail, but entails harsh penalties for those foolish enough to try. The question is: When are autocrats more likely to invoke such measures?

1.3.2 Who Goes to Trial The ultimate objective of a political trial is to restore obedience to authority by way of eliminating a political rival. But not all rivals should be subjected to a judicial process. Rather, I argue that a political trial is more useful when regime cohesion is under strain, as is more often the case when rivals to power come from within the ruling circle. The ruling circle consists of agents whose cooperation is necessary for regime survival, including party leaders, cabinet ministers, and commanders of the security forces. However, because they are such a vital pillar of autocratic support, insider elites are also well positioned to undermine regimes from within. Indeed, such threats are deemed especially vexing because their proximity to power makes it easier to plot in secret, which makes autocrats more vulnerable to their insurrection. When members of the insider elite turn against the autocrat, the autocrat’s goal is to both eliminate the source of the threat as well as maintain the obedience of other members of the ruling circle. Herein lies the value of a political trial: by singling out an insider for prosecution and punishment, autocrats can attempt to restore regime cohesion by demonstrating to other insiders the consequences of defying authority. Bringing this demonstration to court is important toward this end, for it is in the literal courtroom that insiders are able to observe other insiders watch the same proceedings. The act of communal observation can serve to reinforce the main message of the trial because beliefs are stronger when they are assumed to be shared. Invoking a judicial strategy against insider rivals thus helps autocrats overcome threats to regime cohesion by reaffirming the rules of political order (and creating the impression that other insiders subscribe to these rules).

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By contrast, when regime cohesion is not under immediate strain, autocrats may be better served by resorting to extrajudicial strategies of repression. Such is the case when confronting threats to power from beyond the ruling circle, or from outsider elites. Outsider elites comprise a diverse category of politically active individuals or groups who seek greater power in the political sphere, including opposition leaders, trade union heads, and members of the business community. However, because these actors are not members of the autocrat’s inner sanctum, autocrats do not require their support for the regime to survive. Threats from outsider elites thus do not impose the same type of strain on regime cohesion, and in fact, may produce the opposite by providing a common, externally mobilized enemy for insiders to unite against. Furthermore, strategies of outsider mobilization tend to make such groups more convenient targets for state violence. Unlike insider elites who can afford to plot in secret, outsider elites more often wear opposition on their sleeves because doing so can help build broader support for their cause. But visibility has costs: The more open and explicit outsider mobilization becomes, the more obvious targets they pose for extrajudicial repression. What this discussion suggests is that while a trial can help restore obedience to authority in autocratic contexts, whether autocrats opt for this approach can depend on the type of threat they confront, especially whether regime cohesion is under strain.

1.3.3 A Cooperative Judiciary A judicial strategy of repression presumes that there exists a permanent or semipermanent body that can be called upon to execute the duties of court in a reliable, predictable fashion. In most cases, this responsibility falls upon the judiciary: the official judicial corps of the state and in many respects the most suitable conductor of political trials. Because judicial professionals are often the foremost experts in law and judicial procedure, they should be particularly well equipped to conduct courts in a systematic, routine manner. It thus reasons that a more professionalized judiciary goes hand in hand with a more institutionalized process of punishment. While a professionalized judiciary lends stability to judicial process, on what basis can we assume that courts will cooperate with the autocrat’s agenda? The most obvious way to secure a cooperative court is by packing the bench with regime loyalists. A patronage-based logic – wherein government positions are based on loyalty rather than merit – helps explain recruitment patterns across a variety of government agencies in autocratic

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regimes.32 However, the judiciary is a unique type of agency in that the judicial corps is essentially a guild, or an elite professional association with relatively high barriers to entry. In short, not everyone can be a judge. The ability of autocrats to pack the courts is thus constrained by the guild-like properties of the judiciary, which have higher-eligibility criteria the more professionalized the judiciary becomes. Of course, professional jurists can also be regime loyalists; but in practice, this is not always the case.33 The ability of autocrats to sidestep qualified jurists for their preferred candidates can be furthermore limited if their intention is to keep the judiciary professionalized. If autocrats cannot arbitrarily pack the courts in their favor, there are other ways of securing judicial cooperation. Ex ante controls, such as rules to limit tenure and circumscribe discretion, can attempt to forestall judicial disobedience in relatively discreet ways. This is in contrast to ex post controls, such as dismissals, demotions, detention, and even the murder of defiant judges, which brings violence against the judiciary out into the open. Both ex ante and ex post methods should be seen as measures of last resort to be invoked when judges cannot be trusted to voluntarily comply; that is, they are disciplinary measures designed to compel judicial obedience. Without such obedience, the conduct of political trials cannot be taken for granted and the obedience of others may not be restored.

1.4 contributions This book makes several contributions, the first of which is conceptual. One of my central claims is that punishment can be institutionalized even if its application is deemed repressive. Phrased another way, though political trials can bring order to the process of punishment, whether such proceedings are even invoked in the first place can depend more on the identity of the defendant than the nature of their purported crime. Who goes to trial is thus a partisan calculation, not a legal one. As I show in Chapter 4, there are conditions under which insider elites are indeed more likely to go to trial than outsider elites, which provides evidence that judicial procedures are selectively applied for repressive ends; mainly, the elimination of political threats that are close to the center of power.

32 Arriola (2009); van de Walle (2006). 33 Autocrats may face significant constraints in their ability to pack government agencies

with regime loyalists (Hassan, 2020; Woldense, 2018).

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Thinking about repression in these terms represents a departure from conventional theories, which more often treat political violence as an extrajudicial process rather than a judicial one. Strategies of autocratic survival are typically framed as a trade-off between the carrot and the stick, or between institutions of co-optation and violent acts of the state.34 But a central premise of this book is that courts are one weapon among many in the autocratic arsenal – when and why autocrats choose to invoke this judicial weapon is still poorly understood. As the book’s findings suggest, reconsidering repression as a judicial phenomenon can help develop a more complete and nuanced picture of these patterns and furthermore may be useful for understanding democratic backsliding trends because courts are precisely the kinds of contested spaces that are more vulnerable to being “hijacked” for autocratic ends.35 By focusing on judicial strategies of autocratic survival, this book also broadens appreciation for the myriad ways in which autocratic power can be institutionalized. A large body of research on these themes has focused on the cooperative dimensions of elite cohesion, mainly how ruling parties, legislatures, cabinets, and constitutions can help regulate regime relations and thus stabilize the distribution of power.36 Though courts remain comparatively understudied in this tradition, a growing body of work has shown how courts serve similar coordinating functions in autocratic regimes, providing forums to monitor agents, enforce administrative control, enact policies, implement controversial reforms, and legitimize undemocratic practices.37 Building on these works, I focus my attention on the disciplinary devices of autocracy, placing courts center stage to highlight how the judicial routines and rituals that are typically associated with due process can instead be weaponized for its opposite. In so doing, I consider how judicial performances correspond to (and sometimes enhance) performances of power beyond the courtroom. Kilson (1963) and Wedeen (1999) have illustrated the ways in which autocrats deliberately project their authority in the public sphere, through constitutional referendums,

34 Gandhi and Przeworski (2007). 35 Hodal (2019). 36 Arriola (2009); Gandhi (2008); Ginsburg and Simpser (2013); Hassan (2020); Meng

(2020); Slater (2010); Truex (2016); Wright (2008).

37 Ding and Javed (2021); Ginsburg and Moustafa (2008); Helmke (2004); Massoud

(2013); Moustafa (2007); Pereira (2005); Wang (2014).

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rallies and parades, and votes of confidence in parliament.38 Many such activities rely on some form of ceremony or public participation, whether by voting, oathing, or otherwise pledging support to the autocrat. Like their judicial counterparts, these extrajudicial rituals force their participants to be complicit in performances of power. And as is the case with political trials, whether audiences truly believe in these performances is moot. As Wedeen (1999) explains, witnessing the voluntary submission of others can itself be an act of domination.39 Autocratic rituals – whether in or out of court – can thus generate self-fulfilling prophecies whereby perceptions of power lead to genuine support. Approaching courts from this angle serves additional advantages from a theory-building perspective. Conventional wisdom holds that judicial institutions should play a relatively limited role in autocratic regimes. What power do judicial institutions actually exercise when rulers live above the law? But, as the argument goes, courts can become sites of meaningful contestation and do exercise real constraints on arbitrary authority in a functioning democracy; wherever courts fail to live up to these standards (as is often the case in autocratic regimes), it is tempting to dismiss judicial institutions as weak or inconsequential.40 However, the notion that autocratic courts are broken, dysfunctional, or otherwise not fulfilling their true purpose can be deeply misguided, reflecting democratic ideals rather than the world as it truly exists. This book aims to change such thinking by examining how judicial institutions can and often are used to entrench autocratic power, in both deliberate and methodical ways. Reflecting on the state of the judicial politics field, Moustafa (2014) writes that the distinctions that are often drawn between autocratic and democratic courts are arbitrary and oversimplified, which has led to an unfortunate theoretical divide in scholarship on comparative courts. But judicial repression is not a strictly autocratic phenomena: Democrats have also used political trials to achieve partisan agendas, such as during the infamous espionage case against Julius and Ethel Rosenberg

38 Some even introduce constitutional amendments declaring themselves “President for

Life” (Magaloni, 2008).

39 Stern and Hassid (2012) observe similar phenomena in China where uncertainty regard-

ing the limits of state tolerance led many lawyers and journalists to frequently self-censor and control themselves. 40 Such thinking follows the intellectual tradition of a broad body of scholarship in political economy and historical institutionalism, including seminal works by North and Weingast (1989), Weingast (1997), and Olson (1993) on the institutional origins of rule of law and democracy.

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or the Smith Act trials of communist party leaders conducted during the McCarthy-era Red Scare. The presumption that democratic courts are not meant to be used in tyrannical fashion is thus more of a normative claim than an empirical reality. In this vein, it is useful to conceptualize courts as political institutions that can be designed and adapted to serve the needs of their particular environment, as opposed to bodies that are intrinsically democratic or authoritarian. Such thinking has long occupied the minds of scholars of punishment, especially scholars of Western democratic institutions. In his seminal study of the American criminal justice system, for example, Feeley (1979) observed that the proceedings of court ultimately reflect the “state of mind of its leadership and on the amount of concerted hostility in the body politic.” In a similar vein, Kirchheimer (1961) described the courts as an “exclusive staging area for clashes between conflicting political claims,” specifically, the “clash between the authorities of the day and their foes.”41 That is to say, courts may be used as safeguards of democratic values or weapons of autocratic power depending on the needs of the polity which they serve. In addition to rethinking the function of judiciaries, this book also refocuses theories of autocracy in postcolonial Africa. Before the “third wave” of democratization, this region was home to a substantial portion of the world’s authoritarian regimes. But too often these experiences are not taken into consideration when scholars theorize about autocracy. Recent research by scholars such as Hassan (2020), Woldense (2018), Meng (2020), Riedl (2014), Opalo (2019), and others have helped address this gap by building theories of autocracy and democracy rooted in the continent’s diverse histories, especially in regards to the legacies of postcolonial rule on contemporary governance. Building from these works, my theoretical framework speaks directly to the experiences of postcolonial autocracies attempting to consolidate control. And as I show throughout this book, analyzing the types of conflicts that plagued autocrats during the early years of independence provides insight into the broader challenges of autocratic survival, the implications of which may travel to other contexts where elite loyalties are uncertain or regime cohesion is under strain. Finally, while postcolonial Africa is often characterized as a place where informal institutions reign, this book shows that even in very

41 Kirchheimer (1960).

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informal environments, formal institutions matter – but perhaps not for the reasons that we expect. In postcolonial regimes, the formal machinery of criminal justice has long been weaponized in service of the state, even in contexts where political authority became increasingly arbitrary and personalized in the decades after decolonization. In such settings, the selective, strategic enforcement of laws and regulations serves as a potent reminder of who has power (and who does not).

1.5 case selection This book adopts a historical approach in order to elucidate and evaluate the main claims of the theory. As I aim to demonstrate throughout, taking history seriously not only deepens appreciation for how political violence evolves over time, it also complicates our understanding of how power is institutionalized. Theories of authoritarianism often adopt a functionalist view wherein it is assumed that whatever institutions are under the autocrat’s employ were created for the purpose they currently serve.42 While such work provides insight into how autocracy can be configured, the presumption that autocrats are actually able to effectuate their desired outcomes is often taken for granted. In particular, it is not immediately obvious why insecure autocrats who draw on uncertain support would be able to withstand challenges to their power, let alone establish institutions that effectively stabilize their rule. Defusing threats to autocratic survival can be especially difficult in such scenarios, and efforts may ultimately be unsuccessful. However, tracing the evolution of autocratic institutions in historical context can provide insight into how rulers learned to navigate unfamiliar terrain, as well as the potential missteps they made along the way.43 Set against this backdrop, the empirical focus of this book is postcolonial Africa, a context that offers ideal testing ground for theories of judicial repression and autocratic survival but where research on such themes remain scant. To date, scholars of African autocracy largely overlook the courts, turning attention instead to legislatures, parties, and bureaucracies.44 Scholars of African courts meanwhile have tended to highlight 42 This orientation appears most prominently in game theoretic approaches to autocracy.

See Gandhi (2008); Meng (2020); Svolik (2012).

43 This historical approach to understanding autocratic institutionalization and regime

building builds upon the analytical insights of Collier (1982); Hassan (2020); Massoud (2013); Slater (2010); Solomon (1996). 44 Bleck and van de Walle (2018); Bratton and Van de Walle (1994); Hassan (2020); Kilson (1963); Riedl (2014); van de Walle (2002).

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their democratic dimensions, dealing primarily with themes of due process, rule of law, and judicial independence.45 Part of the reason for this disconnect is the fact that these research agendas often focus on distinct windows in time: Whereas work on autocracy tends to examine the oneparty dictatorships and military juntas of the Cold War era, work on the judiciary tends to be rooted in trends that arose during the “third wave” of democratization in the late 1980s and early 1990s. These contrasting periods of geopolitical history have understandably resulted in different analytical approaches to the study of autocratic institutions and courts across the region, but they have also limited understanding of how judicial institutions factored into the designs of autocratic regimes. This book takes a different approach by examining periods of African political development when threats to regime survival were great and pathways to power were uncertain; when leaders had greater opportunities to create, destroy, or adapt the institutions of law and justice to confront these challenges and attempt to consolidate control. My inquiry focuses on the postcolonial period, a time of profound transformation across the African continent marked by the decline of European empire, the rise of new nation states, and the consolidation of military and civilian dictatorships – all within the span of a few decades.46 While this history is well trodden ground, the judicial dimensions of postcolonial politics remain largely overlooked.47 The few works on these themes from scholars such as Widner (2001) and Massoud (2013) have shown the value of recasting this era through a juridical lens, but there is still ample ground to be explored.48 Particularly intriguing is the degree to which postcolonial autocrats chose to work within, rather than around, their colonial inheritances in the legal sector. Originally designed to subjugate indigenous peoples, colonial law and courts provided weaponry 45 Much of this latter body of work examines judicial politics since the 1990s when

global liberalizing trends led to the breakdown of autocratic rule around the world. See Gloppen (2003); Gloppen and Kanyongolo (2007); Ellett (2013); and VonDoepp and Ellett (2011). 46 Young (2012) defines the postcolonial period as the first few decades after independence from colonial rule, ending in the early 1990s with the third wave of democratization. 47 This history is typically explained through the lens of patrimonialism, whereby strongmen executives used their command of state resources to further their particularistic objectives. See Young (2004); Collier (1982); Bratton and Van de Walle (1994); Zolberg (1966). 48 These contributions provide contrasting approaches to the study of judicial politics in historical context. Widner’s (2001) study of rule of law in postcolonial Tanzania pivots around the life and career of Chief Justice Francis Nyalali. Massoud (2013) meanwhile examines three phases of legal politics (colonial, authoritarian, and humanitarian) over 114 years of Sudanese history.

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to wield against anyone who resisted government authority.49 For example, public-order and state-of-emergency laws served as broad legal cover for an array of draconian practices, ranging from arbitrary arrests and indefinite detentions, to mass displacements and executions. These laws worked in tandem with a punitive criminal justice system that severely limited the rights of colonial subjects to a fair trial and helped establish the legal foundations of imperial rule. In these ways, colonial institutions provided a ready, repressive infrastructure for the incoming leaders of the postcolonial state. And rather than dismantle these systems of oppression after independence, postcolonial leaders more often maintained them – turning the rational-legal instruments of colonial rule into weapons of postcolonial power. The question is: Were these outcomes historically determined? That is, were postcolonial leaders bound by their colonial legacies, or did they have the discretion to select which institutions to uphold or destroy? I revisit such themes throughout the book in order to better understand how strategies of repression evolved and whether they ultimately helped fortify autocratic regimes. I further narrow my focus to Anglophone Africa, specifically former British colonies that began to decolonize in the mid-twentieth century. Anchoring my inquiry in this context serves two purposes. First, it provides a more even baseline for understanding threats to autocratic survival across otherwise diverse regions and peoples. Toward the end of the Second World War, indigenous subjects across the British Empire began mobilizing against colonial rule; in several cases these efforts resulted in relatively peaceful, negotiated transitions to independence by the late 1950s and early 1960s, setting the stage for the presidential republics, one-party states, and military juntas that would come to dominate the postcolonial scene.50 The shared struggles for nationhood in these territories set them apart from places where the battle for independence was considerably more violent and protracted, in some cases lasting well until

49 Some of the most repressive legislative tools of the British Empire – including the

notorious preventive detention laws used to detain political opponents without trial – originated in British India and were transplanted around the world without regard to local circumstance (Coldham, 2000). 50 Botswana, a former British colony that became one of the most stable multiparty democracies on the African continent, is a notable outlier.

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the 1980s and 1990s.51 By focusing on nations that experienced similar geopolitical circumstances both before and after independence, I am better able to compare strategies of repression in comparative context and identify similar patterns of punishment across time and place. Second, focusing on Anglophone African cases enables me to refine my inference to a single type of legal regime. The common law systems that were installed across the British Empire were fundamentally distinct from the civil law systems used in Francophone and Portuguese territories, the latter of which were predicated on a different logic of adjudication, judicial authority, and evidentiary procedure. These distinctions may have differing implications for the delivery of political justice: Whereas the common law tradition tends to afford greater autonomy to judges to make judgments based on prior rulings, the civil law tradition tends to treat judges as civil servants whose role is to accept the laws of the government as given, even when they are patently antidemocratic.52 Focusing on Anglophone cases thus provides a way to explore the complex dynamics that may be driving judicial outcomes while ruling out alternative explanations that might be rooted in the different modalities of common and civil law adjudication. Furthermore, given the relative independence of judges in common law regimes, examining such jurisdictions provides a way to test theories of judicial compliance, since judges in these contexts technically have greater discretion to defy political authority.53 Using the aforementioned criteria my analysis features Ghana, Sierra Leone, Kenya, Malawi, Tanzania, Uganda, and Zambia, over a period dating from independence in the mid-twentieth century until the early 1990s. My scope of coverage is thus both geographically wide – including countries in East, West, and Southern Africa – and temporally deep – ranging between three to four decades for each country. The result is an empirical analysis firmly grounded in history, one which reflects the diverse experiences and common challenges confronting autocratic regimes of the postcolonial period. 51 Following long and bloody conflicts, Zimbabwe finally achieved independence in 1980

and Namibia in 1990. South Africa, meanwhile, was dominated by a white minority apartheid regime until 1994. 52 Joireman (2001). 53 In the common law case, it is often argued that the discretion afforded to judges through rules of precedent can help engender judicial independence, since judges have greater autonomy to interpret the law (Joireman 2001).

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1.5.1 Data on Postcolonial Regimes Archival research is generally difficult in autocratic contexts where data are often incomplete, missing, or destroyed.54 But postcolonial Africa presents an additional set of challenges. Despite its relative recency, the postcolonial period is in many ways less well documented than the colonial period in African government archives.55 As many historians have noted, record keeping was not a priority for most postcolonial regimes, meaning government agencies were not compelled to systematically document or keep internal records.56 Even where archives were actually maintained, the lack of infrastructure to properly house and preserve them has in some instances led to literal states of decay. In more devastating cases, records were destroyed by orders from above; ironically, the only records that remain are those that fell beyond the reach of the state.57 Official documents dating from this era can thus be hard to come by, particularly with respect to sensitive matters such as state-sanctioned repression. Yet, a great deal of information on postcolonial politics can be derived from alternative sources. In fact, scholars have increasingly recognized the virtues of so-called shadow archives: historical deposits located outside of the countries under study, usually by the government of the ex-colonizer.58 With respect to former British colonies, many such records were produced by British High Commissioner Offices stationed in African territories, who for decades after independence, served as conduits from their local postings to the London Home Office, as well as to other High Commissioners based in neighboring countries. The documents that travelled between and within these agencies provide valuable intelligence on local African affairs, including a wealth of information derived from indigenous African sources. Of course, no archive is without bias, especially one maintained by a former colonizer.59 The fact that British officials may have painted an

54 Balcells and Sullivan (2018); Hassan (2020). 55 Colonial administration records actually tend to be more extensive than postcolonial

ones in African national archives.

56 Allman (2013); Skinner (2019). 57 Allman (2013) cites known examples of archival destruction in Togo, Nigeria, and

Guinea.

58 Allman (2013); Skinner (2019). 59 Even in formal reports, British officials made no effort to hide their racism and white

supremacy, frequently delivering snide commentary or derisive quips about the inferiority of their African contemporaries.

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askew picture of African affairs (due to lack of interest or intel, or both) cannot be fully dismissed. But, flaws and all, such records still offer considerable value. Considering the geographic and temporal scope of my study, British archives provide a rare vantage point from which to compare and contrast several postcolonial African regimes contemporaneously. Furthermore, these records present a unique perspective of political conflicts in Africa as they unfolded in real time. Due to Britain’s preoccupation with the political and economic stability of its ex-colonies, members of the British High Commission were highly attuned to threats to political order and regime survival across the region, especially potential rebellions and coups. It was thus common for British officers to meticulously track and document any whisper of conspiracy or intrigue and relay this information to their counterparts in neighboring African countries. A single episode could generate hundreds of back-and-forth reports between British agencies that were attempting to confirm the scope of a conspiracy as it was still unfolding – a diligence to detail that I leverage for my own data collection strategy. I drew on variety of archival material over the course of completing this project. My primary source was the British National Archives where I found a treasure trove of country-specific data, including intelligence briefings, memorandums, and reports published by African governments, African gazettes, African newspapers, private correspondences between British agents, letters from African heads of state and other political elites, and other political ephemera. This information was collated by country, year, and compiling agency, including the British Foreign Commonwealth Office and the Overseas Development Agency. Wherever possible, I corroborated these reports with African perspectives, including rare records from the continent that have been preserved by the Endangered Archives Programme, the Senate House Library, and the Honourable Society of the Inner Temple. Data derived from the archives provides the basis for the quantitative and qualitative inference presented throughout this book. My empirical centerpiece is a dataset of political prisoners that I introduce in Chapter 4. The data include a wealth of fine-grained information on individuals who were deemed threatening to autocratic regimes and subsequently repressed by judicial or extrajudicial means. The geographic and temporal scope of these records enable me to systematically test the link between threat-type and repression strategy, as well as explore other questions of judicial behavior and autocratic survival in comparative context. While data on political prisoners provide a bird’s-eye view of repression strategies, case studies present a more nuanced picture of these

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dynamics by fleshing out the mechanisms of a judicial ritual and the different pathways of punishment used by autocratic regimes. I examine these themes in Chapters 3 and 5, wherein I draw on a variety of records from archival and secondary sources to examine cases from Kenya, Sierra Leone, and Tanzania. To understand how autocrats ensured courts would fulfill these objectives, in Chapter 6, I turn again to British sources, including once secret communications between African heads of state and British officials that reveal the challenges of ensuring courts complied in postcolonial regimes. A variety of correspondences, policy reports, and memoranda from this period provide a lens onto the court-packing strategies of African autocrats, especially the remarkable influence of expatriate justices on postcolonial courts. I also consulted the memoirs of justices who actually served on these forums, which provided a unique perspective of political trials from the very agents responsible for overseeing them.

1.6 overview of the book Chapter 2 develops a theory of judicial repression. I explain why autocrats would opt to institutionalize the process of punishment in court, when they are more likely to do so, and how they ensure that the judiciary actually cooperates with their repressive agenda. The remainder of the book is devoted to evaluating these claims in the context of postcolonial Africa. In Chapter 3, I explore the mechanics of a judicial process in Kenya, focusing on a sensational sedition trial that occurred soon after independence. My analysis highlights the ways in which the trial served as a judicial ritual, focusing on how the ceremonial dimensions of the prosecution were used to restore confidence in the autocrat when regime cohesion was under strain. I further show that a judicial strategy of repression was particularly useful when used against insiders from the ruling party. In Chapter 4, I generalize these findings to evaluate patterns of punishment in a variety of autocratic regimes across postcolonial Africa. Using original data on coup plotters, statistical analysis reveals that insider elites were more likely to go to trial; outsider elites, by contrast, were more likely to face extrajudicial repression. I build upon these findings in Chapter 5 through case studies of Tanzania and Sierra Leone to illustrate the mechanisms by which autocrats developed different strategies to cope with threats from insider and outsider elites during pivotal periods of autocratic consolidation.

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In Chapter 6, I focus on the question of judicial cooperation. I specifically examine the risks of judicial rebellion in postcolonial regimes and how this affected judicial strategies of repression. I provide evidence that postcolonial autocrats were deeply suspicious of judges from the insider elite but faced considerable challenges in finding local alternatives. To confront these constraints, autocrats often preferred to appoint expatriate judges from around the British Commonwealth, which not only helped increase the judicial supply but also cultivated more compliant courts. In the concluding chapter, I reflect on the book’s broader implications and draw parallels between past and present. One important takeaway from this discussion is that while weaponizing courts for undemocratic ends is by no means a new trend, the rhetoric used to justify such measures has in many ways evolved. As such, there is still considerable debate regarding the power of courts to constrain the worst impulses of arbitrary rule, or even the ability of democratic interests to harness these institutions for their own ends. Whether these outcomes shall come to pass, however, may depend on the role courts have long played in autocratic spaces and the political interests they were originally designed to serve.

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An idea can never be successfully fought by banning those who entertain it … an idea is thinner than air and cannot be fought physically. —Kenneth Kaunda, Know Your Enemy Seminar, 19531 Once someone finds a weak link in a chain, that is the place he will aim at to try and break up the chain … The [government] machinery is not all that intact. —A. A. Ochwada, Kenya Hansard Official Report, June 8, 19662

In 1958, the attorney general of Ghana, Sir Geoffrey Bing, was called before Parliament to deliver the findings of an inquiry into the attempted assassination of President Kwame Nkrumah. At the time of the hearing, two leading members of the opposition (and outspoken critics of the president) had already been implicated as ringleaders of the conspiracy. But as Bing’s opening statement made clear, the government was uninterested in prosecuting the suspected ringleaders in court. After all, he noted, what purpose would such proceedings serve when the suspects were already being legally detained under the newly instated preventive detention law? In Bing’s words, “Preventive Detention is not intended as a punishment for past activities, it is a method of preventing an anticipated future crime 1 Endangered Archives Program File No. EAP 121/1/4/5. 2 The National Assembly House of Representatives Official Report, 1st Parliament, 4th

Session, May 24, 1966–June 30, 1966, vol. 9.

26

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against the State. Parliament has decreed that the government shall be in this matter the sole judge of what facts constitute a justification for such detention.”3 Nkrumah and his cronies were not alone in embracing extrajudicial punishment. Civilian and military autocracies across postcolonial Africa routinely invoked the logic of preventive detention to deal with threats to regime survival. Given the stakes of losing power, swift and summary repression was seen as an appropriate response – as well as an entirely legal one. As the minister of information, Kofi Basko, exclaimed to the local press, “all of this talk about courts, courts, courts … We are acting absolutely legally. We have told the public the known facts and we have a [Preventive Detention Act] passed by our sovereign Parliament.”4 A judicial process was thus easily dismissed as a luxury that a regime in crisis could ill afford. And yet, autocrats sometimes took extraordinary steps to bring their rivals to trial. This was even the case in Ghana in 1961 when President Nkrumah ordered the installation of a special tribunal to prosecute individuals for crimes against the state. On the surface, many of the cases that would have been diverted to this tribunal appeared virtually identical to ones that had been effectively dealt with through preventive detention law, including conspiracies to subvert the regime or kill the president. The decision to empower such a forum was thus a curious one, especially considering the attorney general’s impassioned defense of extrajudicial punishment only a few years before. ∗∗∗ Judith Shklar famously observed that political trials “amount to no more than the ‘frosting on the cake’ of perpetual purges.”5 But this begs the question, why bother turning a political purge into a judicial one? That is, why did autocrats like Nkrumah invoke a judicial process when they already exercised considerable, legally enshrined powers to detain their enemies without trial? What generally explains patterns of judicial and extrajudicial repression in autocratic regimes? This chapter theorizes why autocrats bring their rivals to court even when doing so is not the most immediate or direct means of defusing such threats. My central claim is that a judicial process of punishment can be

3 TNA: DO 35/9415: Plot to Assassinate Nkrumah. 4 TNA: DO 35/9415: Plot to Assassinate Nkrumah.

5 Shklar.

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used to enforce or restore obedience to authority in autocratic regimes. This process centers around a trial: a set sequence of procedures designed to demonstrate the consequences of violating the autocrat’s rules, or laws. By adhering to this sequence every time a case comes to court, autocrats can institutionalize the process of punishment and generate expectations that the rules of political order will continue to be enforced (as they were in previous trials). That this message is delivered in court is significant. In particular, the assembly of the autocrat’s supporters in the shared space of a courtroom enables them not only to directly observe the proceedings of a trial but also to observe each other. The act of communal observation helps reinforce the message of a trial because beliefs are stronger when shared. Phrased another way, by the end of this proceeding, all observers are more compelled to obey by the supposition of others’ obedience. I further claim that this strategy is more useful when autocrats face threats to regime cohesion, such as when confronting challengers from within the ruling group. A trial in this case can be used to restore confidence in the autocrat before an audience of other regime insiders. However, if regime cohesion is not under immediate threat, then autocrats can more readily respond with conventional forms of extrajudicial punishment. We should thus expect to see trials invoked more frequently against rivals from within the ruling group rather than from without, the latter of which can be more easily disposed of through conventional repression. Finally, for autocrats who opt to use a judicial strategy, the successful execution of a political trial generally requires a cooperative judiciary. In most contexts, the judiciary comprises the official judicial corps, or jurists who are deemed the foremost experts in law and judicial procedures of the state. The judiciary should thus be particularly well equipped to conduct courts in a systematic and routine fashion, which is ideal for ensuring that political trials proceed according to plan. The most obvious way to secure a cooperative bench is by packing the court with regime loyalists. However, I argue that institutionalizing the process of punishment may constrain who autocrats can actually bring to the bench. This is because a professionalized judiciary is essentially a guild: an elite, professional organization with relatively high barriers to entry designed to ensure that its members share the same qualifications and expertise. In practice this means that not everyone can be a judge, such that autocrats may be unable to arbitrarily select their preferred candidates if they do not meet the minimum professional eligibility. Wherever autocrats cannot fully stack the courts in their favor, they may opt instead to impose ex ante and ex post controls on the courts as a means to ensure

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whoever serves on the bench ultimately cooperates with their agenda. Ex ante controls, such as rules to limit tenure and circumscribe discretion, can attempt to forestall judicial disobedience in relatively discreet ways. This is in contrast to ex post controls, such as dismissals, demotions, detention, and even the murder of defiant judges, which bring violence against judges out into the open. What this suggests is that whenever other measures of co-opting or controlling judges fail, autocrats can attempt to secure their cooperation through extrajudicial violence. My theoretical framework thus consists of three pillars: the process of a political trial, the main targets of this process, and the challenges of ensuring that courts comply. The remainder of this chapter examines each pillar in greater detail. To set the stage, I begin with a summary of existing approaches to scholarship on autocratic repression followed by a discussion on how to refocus these paradigms under a judicial lens. I then introduce the main argument of why autocrats judicialize the process of punishment. After explaining the benefits and costs of going to court, I examine the conditions under which autocrats are more likely to use judicial strategies of repression over extrajudicial alternatives. The final section examines how autocrats ensure that courts, once employed for repressive outcomes, actually cooperate.

2.1 rethinking repression: violence and punishment in perspective A theory of repression that centers around the courts requires rethinking repression as it is conventionally understood. To date, the bulk of existing scholarship focuses on acts of coercion aimed at deterring activities deemed threatening to those in power. Goldstein’s (1978) oft-cited definition describes “actual or threatened use of physical sanctions against an individual or organization, within the territorial jurisdiction of the state, for the purpose of imposing a cost on the target as well as deterring specific activities and/or beliefs perceived to be challenging to government personnel, practices or institutions.”6 Although such tactics are not specific to regime type, repression is more often associated with autocratic rule and is often considered to be one of its defining features. However, repression is often cast as a costly measure to defuse threats that tends to be invoked after institutions of co-optation

6 Goldstein (1978), p. xxvii.

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or power-sharing breakdown.7 Autocrats thus repress as a measure of last resort if they are unable to resolve conflict by other means, often because there is no independent authority that can credibly resolve disputes.8 Repression typically involves sanctions that violate freedom of expression, congregation, personal integrity and security, and due process.9 At the more extreme end of “state-sanctioned terror,” coercion may consist of arbitrary arrest and detention, torture, restrictions, displacement, exile, and murder.10 However, coercion need not be overt: Less intense forms of violence (including surveillance, harassment, and the denial of employment, benefits, or other civil liberties) can also be used to effectively silence or intimidate dissenters.11 Scholars of repression have largely focused on coercive agencies, including military and security forces.12 However, noncoercive agencies can also be directly or indirectly involved in ensuring that political violence achieves its intended objectives. In postcolonial Africa, for example, the ruling party was a central facilitator of repression across the state apparatus, serving “not just as a means of mobilizing regime support, but as an adjunct to the security forces in monitoring and controlling opposition.”13 Such was the case in Kenya, where the party-controlled civil service played a prominent role in facilitating the repression of opposition groups.14 Though it is generally acknowledged that even noncoercive agencies can be complicit in repression, courts rarely factor into these debates. In fact, whenever courts are mentioned in reference to acts of political

7 8 9 10

Davenport (2007); Gandhi and Przeworski (2007); Hafner-Burton (2005). Svolik (2012). Davenport (2007); Goldstein (1978); Hafner-Burton (2005); Carey (2006). Repression research has largely focused on measures of political violence that impose corporeal harm, although recent scholarship has turned attention to the psychological effects of repression, specifically the effects of violence on emotions and beliefs (Fariss, 2014). 11 Levitsky and Way (2010). 12 Hassan (2020); Greitens (2016); Bellin (2012). 13 Widner (1993), p. 7. 14 The Kenyan Societies Registrar was particularly vital in this regard as the main enforcer of the Societies Ordinance, a law requiring all political parties to obtain state approval before legally operating. This was a colonial-era statute that was originally used to suppress anti-imperial mobilization among indigenous Kenyans. The Registrar thus ensured that the application process was inordinately burdensome and rife with opportunities for clerical (or more likely deliberate) error, which gave them considerable leeway to prevent opposition groups from gaining legal status. In short, the Registrar made legal opposition virtually impossible and ultimately paved the way for their criminalization. See Mueller (1972) for a more thorough examination of this history.

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violence, they are often assumed to be counteracting, not enabling, arbitrary abuses by the state.15 Part of this oversight lies in how repression has been defined as the violation of First Amendment–type rights, whereas courts are more often portrayed as the defender of such freedoms. These norms are pervasive even in scholarship on autocratic courts, wherein judicial power is often conceptualized as the ability of judges to hold autocrats accountable to the law.16 Yet, the notion that courts should serve as democratic safeguards is worth revisiting, considering how the judicial process has been routinely weaponized for oppressive ends. This is particularly true of political trials–proceedings wherein the machinery of criminal justice is turned against opponents of the status quo. While political trials represent a relatively explicit form of punishment in autocratic regimes, these episodes remain understudied in work on comparative courts. Far more attention has been paid to the coordinating functions of autocratic judicial bodies, including the ways in which courts help manage and defuse conflict among ruling elites.17 Of the limited research on judicial repression, Solomon (1996, 2007) and Pereira (2005) have shown that such campaigns have been deployed in a wide array of autocratic contexts, ranging from the military juntas of Latin America to the totalitarian dictatorship of the Soviet Union. These studies underscore the repressive features of a judicial process, but in either case, the analytical focus is on political dynamics beyond the courtroom and how those conflicts manifest in judicial outcomes.18 Missing from these works is a theory of judicial repression that centers squarely on the process of the political trial.

2.2 the theory: explaining judicial repression This section presents a theoretical framework that addresses the following questions: First, how do autocrats institutionalize the process of punishment in a court of law and what purpose do such proceedings serve? Second, what types of actors should be subjected to this process and why? And third, whenever autocrats decide to use courts for these ends, how do they ensure that desired outcomes come to pass?

15 Hill and Jones (2014). 16 Moustafa (2014). 17 Ginsburg and Moustafa (2008); Helmke (2004); Myerson (2008); Wang (2014). 18 For Pereira, this is the level of trust between military leaders and civilian judges; for

Solomon, this is the politics of the Great Terror and its permeation across all of Soviet society.

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2 A Theory of Judicial Repression 2.2.1 Institutionalizing Punishment: The Process of a Trial

To explain the process of a political trial, we must first define it. But defining such cases is deceptively simple – trials have been deemed political according to a wide range of criteria, including the nature of the criminal offense, the identity of the defendant, and even the timing of proceedings.19 Some scholars draw a distinction between political trials and show trials, the former of which may adhere to the rule of law, while the latter are, as Posner (2005) argues, “so over determined by politics that they can hardly be considered trials at all.”20 While it is easy to dismiss show trials as legal travesties, such proceedings share important features with cases where outcomes are not completely predetermined. In both scenarios, the judicial system has arguably become complicit in the persecution, degradation, or elimination of political foes, and the presumption in either is that some sanction is likely to befall the defendant (though the certainty of punishment may be greater in the former). Furthermore, many so-called show trials only received this label in hindsight, sometimes years or decades after the fact. For example, during the “Red Scare” hysteria of the Cold War, many established democracies convened anti-Semitic, anti-foreign, and anti-Communist trials that were deemed just and proper by contemporary democrats and jurists.21 Even during the Moscow show trials of the 1930s, “prominent diplomats and seasoned journalists (as well as the ‘true believers’ in the various communist parties and sympathetic movements in the West) believed that the [trials] were legitimate, or at a minimum, felt that there was so much smoke that there had to be at least some fire.”22 The line between political and show trials is thus often fuzzy at best, more of a difference of degree than of kind.23 For clarity’s sake, I adopt a minimalist definition of political trials that builds upon Kirchheimer’s (1961) seminal study of judicial proceedings intending to “evict” a rival from the political scene. This also comports with Shklar’s (1964) definition as cases wherein the “prosecuting party,

19 For example, Falk (2008) defines political trials as “wars carried out by legal means,”

drawing parallels between the ideological trials of the Cold War era and those from the post-9/11 War on Terror. Posner (2005) adopts an issue-specific definition of political trials to include both the partisan trials of political opponents as well as the more “public-spirited trials of public threats.” 20 This was the case in Nazi Germany and the Soviet Union where the climax of the trial was typically the well-rehearsed courtroom confession. 21 Christenson (1986). 22 Falk (2008), p. 65. 23 Shen-Bayh (2018).

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usually the regime in power aided by a cooperative judiciary, tries to eliminate its political enemies.”24 Note that by these criteria, whether a trial is deemed political depends on the ruler’s objective, not features of the trial itself. Political trials thus defined, how can they be used to institutionalize the process of punishment? To unpack the mechanics of a judicial process, let us first consider a normal criminal prosecution, specifically the sequence of legal motions and hearings that falls between indictment and verdict. This sequence begins with a formal allegation by the state that an individual or group has committed a crime. Next, the main parties of the trial (including the accused, the prosecutor, and the judge) assemble in court whereupon the prosecutor presents their case against the accused, and the latter may have the option of offering a defense.25 After the prosecution rests, the judge delivers their verdict. Thus concludes the trial. From start to finish, this judicial proceeding tells a simple story: Defying the law entails consequences. But the manner in which this story is delivered deserves further scrutiny, especially when considering the often elaborate ceremonial dimensions of a judicial process. To this end, ritual, defined as a ceremony consisting of actions performed in a prescribed order, provides a useful optic for understanding how the process of punishment can become institutionalized in an autocratic regime. A ritual invokes familiar, decipherable routines to ensure that everyone who bears witness to its proceedings readily understands what is about to unfold.26 Given its readability, a ritual can be a valuable means of coordinating others around a set of shared beliefs or rules. Does this not describe the proceedings of a trial – a fixed sequence of indictment, adjudication, and judgment that illustrates the consequences of breaking the law? Framed in this light, each participant of a trial plays a symbolic role in the judicial ritual: The accused is the embodiment of real or imagined threats to political order; the prosecutor represents the interests of the state, mainly the autocrat; and the judge acts as umpire for the law, or the rules of the game. The judicial ritual can be further elevated through legal language: lofty rhetoric that translates the story of conflict into more dramatic but also 24 Shklar (1964), p. 149. 25 Whether the accused is given this opportunity varies considerably across context. In fact,

in some cases, the accused may even be denied the right to legal representation.

26 Chwe (2013).

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formulaic terms. However, in defining what is deemed criminal behavior, the law reduces the complexities of real-world conflict to simpler categories of right and wrong.27 Whatever motivations or circumstances prompted the accused to behave as they did can be cast aside by the prosecution as legally irrelevant; what matters in court is that the accused violated the autocrat’s law. The constrictive power of legal language can also affect the behavior of the accused in court. To the extent that they are even allowed to defend themselves, the accused is generally bound to respond to the state’s charges using the state’s own language – that is, the language of criminal law. Deviating from this strict custom means mounting a nonsensical defense, or delivering arguments that will be readily dismissed by the judge for being legally invalid. In this fashion, the proceedings of court delimits the rules of the game that the defendant must abide by, however fair or unfair those rules may be. By assigning clear roles to each actor in court, as well as limiting the permissible language that can be used by those actors, a judicial process helps control the narrative of a trial: a narrative that shows what consequences can arise when actors are found guilty of defying the law. The proceedings of court thus help reinforce the rules of political order by illustrating in no uncertain terms the penalties of violating those rules. When do autocrats need to reinforce these rules? Chwe (2013) reflects that the need to “shore up” support often arises when “social strains and tensions … have begun to impair seriously the orderly functioning of group life.” That is, wherever chaos reigns, obedience to authority can be difficult to maintain. But restoring order can be easier when a greater number of people subscribe to and uphold the same set of beliefs. As Polanyi (1958) observes, “if in a group of men each believes that all others will obey the commands of a person claiming to be their common superior … all are forced to obey by the mere supposition of the others’ continued obedience.” The generation of shared beliefs, specifically the belief of what others believe, is a crucial takeaway from a trial and a potentially powerful form of censorship. This is particularly true in autocratic contexts where holding dissenting opinions can be individually costly. Even if an individual privately disbelieves the prosecution’s case against the accused,

27 In some autocratic contexts, this definition flows directly from the autocrat’s mouth, or

at least bears his seal of approval.

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the mere fact that they see others acting as if the proceedings are true can lead to the individual conclusion that others find this performance credible. The act of mutual observation among the observers of court can thus discourage an individual from expressing their private disbelief out of fear that they are alone in their incredulity (and expressing dissent merely makes them a target for attack). Furthermore, an individual may be more inclined to suppress their misgivings and accept these proceedings as true if they believe that others do as well. A political trial can thus perpetuate what Geertz (1983) describes as the “master fiction” holding society together, wherein the core beliefs about authority and the bounds of permissible behavior are stronger when they are assumed to be widely shared. The importance of generating shared beliefs or common knowledge helps explain why trials often happen in public. Sometimes courts are made open to general audiences such that anyone can witness their proceedings firsthand. Other times, details about the case are publicized through government press releases or news media as a case unfolds. Publicizing such proceedings in real-time can furthermore perpetuate beliefs that conflict is being resolved in tidy, predictable fashion. Conveying this idea is valuable for autocrats confronting a crisis of leadership because it suggests that threats to political order are in the process of being (or have already been) defused. That is, the point of the judicial ritual is not just to summarize the proceedings after the fact, but to perform a live-action narrative that creates a sense of closure by the end of the trial. Takeaways of a Trial In sum, a trial can be used to institutionalize the process of punishment in autocratic regimes because a performative, routinized ceremony of justice makes common knowledge a set of beliefs and rules. Such rituals are particularly valuable when the rules of political order are under strain and the autocrat needs to shore up support for his authority. These insights are what motivate autocrats to bring their political rivals to trial – that is, when a trial becomes political – for it is in court that the autocrat can assemble his supporters to observe how the rules of political order are enforced, but also to observe the obedience of others to those same rules. The goals of such a proceeding are twofold: to punish the defendant in the dock but also demonstrate to the autocrat’s supporters that the autocrat’s rule has been restored. Sending this message can help maintain obedience to authority in autocratic regimes.

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2 A Theory of Judicial Repression 2.2.2 Who Goes to Trial?

Under what conditions are autocrats more likely to invoke a judicial process? And when are they more likely to resort to extrajudicial tactics? In this section, I explain why a judicial approach is particularly useful when regime cohesion is under strain, which is likely when autocrats face challengers from within the ruling circle. Threats from within are particularly difficult to address because of the uncertainty that defines factional conflict, such that autocrats may find it hard to discern whether members of his own regime are truly supportive or are instead secretly plotting against him. A political trial can help autocrats overcome these insecurities by serving as an explicit reminder to all insiders of the rules of political order (rules that the autocrat himself propounds). The autocrat thus defines acts of disloyalty, whether real or perceived, as crimes that will be prosecuted and likely punished. And by institutionalizing this process in court, the autocrat ensures that members of the ruling elite are able to observe these proceedings and internalize their message, which should help enforce obedience to authority. By contrast, an extrajudicial approach is more useful when autocrats face political rivals but regime cohesion is not under immediate threat. This might be the case because other insiders are already united against the rival in question, which is more likely when the rival comes from beyond the ruling circle. Due to their peripheral status, a member of the outsider elite does not have the luxury of plotting in secret and must instead mobilize out in the open, wearing their opposition on their sleeves. The overt, often explicit nature of outsider mobilization makes such a rival a more obvious threat to the status quo, as well as an easier target for extrajudicial violence.

When Regime Cohesion Is Under Immediate Threat: Insider Rebellion Insider elites, including cabinet ministers, military advisers, and other lieutenants who operate close to the center of power, play a vital role in ensuring autocratic regimes survive. Bueno de Mesquita et al. (2004) refer to this group as the “winning coalition” because its members play an essential role in helping rulers “win” or stay in office. In practice, however, a variety of lower-level administrators including legislators, civil servants, police, and local administrators can play critical roles in ensuring that autocratic regimes function. And while such agents are not members of the ruling coterie, they are still expected to contribute to the survival of

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the regime. This is in contrast to elites who are leaders of the opposition or actors from outside of the political ruling class who enjoy popular prominence but are still not part of the selectorate.28 Compared to agents of the regime, these outsider elites lack the same kind of incentives to maintain the status quo and may thus not be as invested in supporting the incumbent.29 A key distinction of insider elites is their contribution to regime survival: Without their active support, the autocrat cannot hope to survive. But the autocrat’s dependency on these agents is what makes them particularly threatening to regime cohesion, since insiders can leverage their access to power to mount a rebellion from within. Such an undertaking is known as an allies’ rebellion or palace coup, wherein autocrats are deposed by members of their own ruling coalition.30 Palace coups were of prime concern in postcolonial Africa where contests for power frequently culminated in unconstitutional regime change, or coups. As Young (2012) observes, the military often played a decisive role in these outcomes, whereby “military intervention became the sole mechanism to displace incumbents,” though the “putschist in power normally formed a new single party to legitimize permanent status for his rule.”31 An important yet oft underemphasized feature of insider coups is how little often changes after the autocrat is overthrown. That is, beyond dethroning the autocrat, most insiders can retain their status in the ruling group or advance to greater positions from before. Consider the insider revolts of Swaziland in the early 1980s, wherein both the prime minister and the queen were deposed in quick succession while the Swazi monarchy never lost control.32 Similarly in Ghana, when General

28 Drawing this sharp distinction between insiders and outsiders means relegating oppo-

29

30 31

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sition elites to the outsider category, but as will be shown in the empirical chapters, this categorization is appropriate given the dynamics of autocratic consolidation in postcolonial Africa. In Chapter 7, I revisit these distinctions in the wake of political transformations that have occurred following the “third wave” of democratization. The idea of shared stakes informs Bellin’s (2012) seminal work on coercive agencies, which shows that making insider agents dependent on autocrats for access to wealth and power ensures that they are more likely to undertake whatever violent means are necessary to uphold the status quo. However, Levitsky and Way (2012) find that material inducements are a less durable basis of regime-building than ideological ones. Svolik (2012). Some military leaders negotiated transitions back to civilian rule, whereas others formed semipermanent juntas, most of which were subsequently overthrown by other military elites. Matsebula (1976).

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Ignatius Acheampong was ousted as leader of the Supreme Military Council in 1978, he was replaced by Deputy-General Fred Akuffo – his second-in-command – while other members of the military junta either retained their original positions or were promoted.33 Young (2004) writes that the “military coups of the postcolonial state era merely altered the personnel at the summit; the security apparatus of the state remained intact” (p. 44). The main takeaway is that insider rebellion is not equally threatening for all members of the ruling group; whether other insiders will feel threatened depends on whether they are aligned with the autocrat and thus have their fates intertwined. It would be natural to assume that given their proximity to power, insider threats are easy to recognize. But the insidious, covert nature of threats from within can make it difficult to identify potential rivals in advance. That insider threats are able to conceal their true intentions is in part due to the lack of transparency that characterizes autocratic regimes, which enables insiders to more easily conspire without being caught.34 But it also reflects the fact that organizing rebellion within the ruling group has lower collective action hurdles than mounting rebellion from below. In contrast to external mobilization against the regime, which requires considerable manpower to pose a viable threat, insiders only need to coordinate a small coterie of ruling elites, and mobilizing a handful of political and military officials is far easier than mobilizing thousands of outsiders.35 But insiders who are openly disloyal to the autocrat risk being purged before they are ready to strike. The consequences of revealing dissent too soon were readily apparent in Malawi when, only a few months after independence in 1964, several cabinet ministers presented a letter of grievances to then – Prime Minister Hastings Banda. The letter outlined the sources of ideological and generational cleavages within the upper echelons of the Malawi Congress Party (MCP) and was signed by every member of Banda’s Cabinet. While the cabinet ministers had intended for the letter to shed light on Banda’s authoritarian tendencies and thereby 33 When Akuffo himself was ousted by another military coup a year later, the new leader-

ship chose to re-appoint many prominent officials from the previous regime, including several civilian politicians in charge of important government portfolios. See McGowan (2003). 34 Boix and Svolik (2013). 35 Arriola (2009) argues that this is why autocrats prefer to increase the size of their ruling coalition, since doing so increases the scale of insider coordination necessary to overthrow the incumbent.

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rein in his behavior, they instead revealed to Banda who was aligned against him. Signing the letter was thus tantamount to signing one’s own political death warrant. The day after receiving the letter, Banda purged all of its signatories from the ruling party and called for a vote of confidence in parliament, which he won handily. In the weeks and months that followed, many of the ex-ministers fled the country and spent the remainder of their lives in exile. As the preceding example suggests, maintaining the facade of loyalty is often crucial for retaining status in the ruling group, without which insiders cannot even plot rebellion from within. But the two-faced nature of insider threats – pledging support for the autocrat while actually plotting his downfall – makes it challenging for autocrats to distinguish between allies and enemies within the ruling group. Such paranoia fueled much of the party-state propaganda in postcolonial Africa, which often asserted that “an open enemy is better than a false friend.”36 Returning to the Malawi example, shortly after President Banda purged the ruling party of his most vociferous critics, he warned that enemies were still lurking nearby: “subversive elements might be in the form of a colleague, a sister or brother etc. … once a subversive element is found in them just blindfold your face, crush it, and forget about it.”37 The notion that enemies could be anywhere (even in one’s own family) was also a central theme of the 1971 “Know Your Enemy” seminar sponsored by the United National Independence Party (UNIP) in Zambia. As one speaker explained: Whereas the atrocities of colonialism are visible and tangible and can therefore be effectively counteracted … the worse atrocities … are a bunch of sophisticated intrigues carefully calculated … to destroy our peace, unity, and economy. Those sophisticated intrigues are neither tangible nor visible. They are under cover of camouflage which is capable of changing its shape and color at any time in any circumstance in order to cheat and seduce us.38

This propaganda underscored a deep paranoia within the one-party state, paranoia fueled by uncertainty over the true loyalties of elite insiders. But how autocrats respond to such uncertainty can have further repercussions on regime cohesion. In an ideal scenario, autocrats would simply purge rivals from the ruling group and thus remove the threat directly. But for reasons outlined earlier, autocrats often lack information about who 36 Endangered Archives Program File No. EAP 121/1/4/5. 37 Dr Banda’s Speech to a Mass Rally at Mayani, in Dedza District on September 29, 1969.

The National Archives (TNA): DO 224/4.

38 Endangered Archives Program File No. EAP 121/1/4/5.

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their rivals are, as well as who else within the ruling group is aligned with their rivals or likely to defect. Furthermore, allegiances may not become clear until after insider plots materialize. These situations are doubly damning for autocrats because not only has dissension within their ranks been brought to the surface, but insiders who were previously unaware of such plots may decide to join the rebellion after it has been made public. In other words, insiders may choose to defect once it becomes known that the autocrat lacks broader support.39 When Regime Cohesion Is not Under Immediate Threat: Outsider Rebellion Not all challengers prefer to conceal their true intentions. As briefly mentioned earlier, outsider elites can be broadly construed as individuals who are excluded from the main positions of power. This encompasses a wide variety of elite actors, including leaders of opposition parties, religious groups, trade unions, chambers of commerce, and other civic organizations.40 Regardless of motive or background, because these elites lack membership in the ruling group, they are considered to be more “distant threats” to the autocrat.41 But distant does not mean negligible. Though outsider elites do not occupy the upper echelons of power, they still derive considerable strength in numbers.42 In postcolonial Africa, mass mobilization was particularly useful for outsiders given that no single group was likely to oust the ruling party on their own. However, when several small opposition groups joined forces to form a broader coalition, they posed a greater threat to one-party hegemony. Such was the case in Ghana in 1957 following the passage of the ruling Convention People’s Party (CPP) controversial legislation prohibiting any political association based on tribal, religious, or ethnic lines. Though the law effectively banned all existing opposition groups, members of the now-defunct parties decided to join forces under a “United Party” banner, a cross-cutting coalition of diverse organizations 39 Kuran (1991) refers to an individual’s willingness to join a high-stakes movement as their

“revolutionary threshold.” This information remains hidden unless a critical mass forms that breaches an individual’s threshold. This is why regime change can occur suddenly and without warning, especially in authoritarian regimes where public preferences are routinely falsified. 40 Gandhi and Przeworski (2007). See also Bratton and Van de Walle (1994); Forrat (2016); Rakner and Van de Walle (2009). 41 Roessler (2011). 42 Bhasin and Gandhi (2013).

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that technically could not be accused by the regime of promoting particularist interests.43 Contrary to the ruling group’s aims, the United Party was able to legally campaign for several years, undermining popular support for the CPP. As the preceding example suggests, outsider threats could become particularly contentious around election periods when the threat of opposition takeover could actually be quantified at the ballot box. Falling vote share was of special concern to the leaders of the Sierra Leone People’s Party (SLPP), who watched with alarm as opposition parties and independents steadily gained electoral ground, winning a combined total of 54% and 65% of the popular vote in the 1960 and 1962 elections, respectively.44 In an attempt to hold onto power, the SLPP announced plans to declare a one-party state. However, the opposition campaigned heavily against the measure, a platform which proved effective in the 1967 general elections: The SLPP lost its majority stake in parliament and had to cede control to the opposition All People’s Congress (APC). The APC takeover (which was popularly determined and constitutionally legitimate) provides a stark illustration of the sizable threat posed by outsiders to incumbents.45 Yet, outsider elites do not always mobilize around elections: They can also attempt to seize power through overt violence. Violence is more likely wherever autocrats have effectively suppressed or banned the existence of outsider mobilization, the irony being that if outsider elites are denied the right to participate through legitimate channels, their only way of gaining power is through unconstitutional means. Such desperation is what motivated an ex-member of the Malawian parliament to stage an armed insurrection against President Hastings Banda.46 Similar violence threatened neighboring Zambia where the opposition was frequently accused of recruiting military assistance from rebel fighters based in Angola. Meanwhile in Zanzibar, interparty conflict escalated into a full-scale revolution only a few weeks after independence when two opposition parties joined

43 Kasfir (1974). 44 African Elections Database (2012). 45 Though it is worth noting that once the APC were in power themselves, they showed no

reservations in declaring a one-party state in 1971.

46 Henry Chipembere was purged from the ruling party shortly after independence and

had to mobilize his supporters in Malawi while he himself was operating in neighboring African countries.

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forces to successfully overthrew the ruling coalition.47 Notably, only a week prior to the Zanzibar revolution, the opposition had been declared an illegal organization by the state. As these examples suggest, whenever outsider elites are able to assemble en masse, they pose a greater threat to defenders of the status quo, whether by popular election or popular revolt. But before outsider interests can coalesce, they must first publicize their cause. Publicity in this case is essential for coordinating diverse actors and overcoming collective action problems, as well realizing shared grievances against a mutual adversary.48 As van de Walle (2006) argues, the size of the opposition can become a “tipping game” whereby citizens who privately support such groups are more likely to come out in support of them if they believe that others will, too.49 These dynamics help explain why outsider groups not only wear opposition on their sleeves, but demand that their supporters do the same. For example, in a 1957 circular to their supporters, the opposition Zambian African National Congress (ANC) emphasized that openly proclaiming one’s membership was essential for building momentum against the incumbent: Have you ever been asked by your employer whether or not you are a member of Congress? … Did you attempt to hide the fact that you are a member? If you hid the fact, what were you afraid of? … Should any African worth his salt make that an excuse for not joining the Congress? JOIN THE CONGRESS today and help put an end to this evil.50

By so brazenly branding themselves as opposition, outsider elites could sometimes exacerbate the sense of collective insecurity of autocratic regimes. In the postcolonial African case, this insecurity was evidence by the enactment of a constellation of draconian laws and policies labeling the opposition as not “merely illegitimate, but traitorous.”51 In some

47 The revolution was staged by the leaders of the Afro-Shirazi and Umma parties, who

had grown increasingly frustrated by their under-representation in parliament.

48 Publicity is also good for generating support among international human rights groups

that can provide foreign leverage for domestic opposition. Amnesty International, Human Rights Watch, for example, are more likely to lobby on behalf of well-known activists or politicians, but not unknown individuals. 49 On the subject of tipping games and revolutionary thresholds, see Kuran (1991). 50 EAP 121/1/4/1: ANC National Congress (Northern Rhodesia) Congress Circular, Vol III, No. 5, Official News, May 1957, by T. B. Mukupo, Acting Secretary-General. 51 Kilson (1963), p. 266.

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cases, opposition parties were even deemed to be terrorist organizations. Postcolonial parliaments passed with little to no resistance so-called preventive detention laws that gave African heads of state supreme authority to detain political opponents without trial under the logic that such actors were exigent threats to national security.52 These laws were routinely invoked against the opposition in the lead-up to national elections as a means for insiders, not necessarily the autocrat, to maintain their government position.53 When to Use Judicial or Extrajudicial Approaches The differences between insider and outsider threats – proximate versus peripheral, covert versus overt, and uncertain versus certain – have different implications for regime cohesion, which help explain when and why autocrats bring their rivals to trial. To reiterate, my main claim is that a judicial approach is ideal for defusing threats from insider elites because of the immediate threat they pose to regime cohesion. Due to their status as members of the regime, insider elites pose proximate, covert, and ultimately uncertain threats to autocratic order. In such scenarios, autocrats can attempt to use the ritual of a trial to restore submission to his rule by illustrating the consequences of defying his authority. Performing this trial before an audience of insiders in court can help generate common knowledge about the rules of political order, which should help cultivate submission to the status quo. By contrast, outsider elites are less likely to be subjected to a judicial process because they pose more peripheral, overt, and hence more certain threats to autocrats and other insiders – that is, they are lower threats to regime cohesion. To understand why, recall that outsider mobilization works best when broadcast for all to see. But visibility has consequences: the more open, overt nature of outsider opposition is what makes it easier

52 Opposition leader Oginga Odinga was accused of conspiring with foreign powers to

overthrow the government and was subsequently detained without trial. These tactics were validated by laws passed in the KANU-controlled legislature. In June 1966, KANU agents agreed to expand the government’s powers of preventive detention, immediately after which nineteen opposition members were summarily detained. From August through October 1966, nineteen opposition supporters were arrested and detained without trial under the Preservation of Public Security Act. This legislation was later invoked following a violent, deadly clash between ruling party and opposition supporters at a rally in Kisumu town (the so-called Kisumu Massacre), and all opposition ministers were detained without trial (Mueller, 1972). 53 Bhasin and Gandhi (2013) argue that opposition leaders are often explicitly targeted during sensitive election periods when outsiders are more likely to assemble in public.

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for autocrats to portray such groups as a collective threat to the status quo. The very existence of outsiders can thus be a reminder of the rules of political order, meaning autocrats do not need to invoke a judicial ritual to remind others of these rules. Instead of taking outsiders to trial, what should autocrats do to contain such threats? Given that repression is a collective effort, often involving the coordination of agents across a variety of coercive and noncoercive agencies, it reasons that state violence should be easier to coordinate when the agents of repression are united against a common target. Outsider elites fit this description, since by virtue of their peripheral status and their often overt opposition to the status quo, they are easier to portray as existential threats requiring extrajudicial solutions. Ironically, the factors that contribute to outsider strength (their size and visibility) are what make them easier targets for state-led violence. The logic outlined earlier has broader ramifications for our understanding of autocratic repression. Conventional definitions of repression focus on state-led acts of political coercion, where the intent of such violence is to dissuade, deter, or demobilize the targets thereof. But a political trial that aims to eliminate a political rival fits this description – for both the immediate targets of prosecution as well as for other insiders who are compelled to submit to or otherwise act as if these proceedings are true. The elimination of due process further underscores the repressive character of such cases, especially when it is observed that autocrats invoke judicial procedures selectively for certain types of threat. In other words, if individuals are more likely to be taken to trial because of their identity (insider) than their behavior (defiance of the autocrat), then the law is being applied in an uneven, partisan fashion. This implies that whenever autocrats opt to conduct political trials in these ways, a judicial process becomes a repressive one. Furthermore, by strategically targeting elite insiders for prosecution, autocrats can establish patterns of persecution that reinforce the narrative power of political trials. Consider how if autocrats routinely invoke judicial procedures against insider threats – that is, if trials are known to be politically motivated – then the observers of court are likely to believe that whenever a judicial process is invoked, some form of negative consequence is likely in store for the defendant on trial. Merely accusing someone of crimes against the state can thus lead to the general expectation that they will sooner or later be punished. Notice, however, that this expectation is generated by the process of punishment (i.e., the judicial ritual) more so than the facts of the case at hand. In fact, even if the outcomes

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of a trial are not predetermined, the ritualistic nature of a judicial process can generate expectations that they are. By the time the judge delivers their verdict, the expectation of guilt has already been internalized by the observers of court. Why should observers expect anything different when the same story is oft repeated? This is the insidious power of a ritual: Merely initiating a familiar, repetitive sequence can trigger expectations for how the sequence will end; if and when expected outcomes do come to pass, they merely confirm prior beliefs that these results were guaranteed from the start.54 The Implications of Switching Judicial and Extrajudicial Approaches The preceding discussion helps explain the logic behind judicial and extrajudicial strategies of repression, or why insider elites should be brought to trial and outsider elites should be subjected to extrajudicial approaches. But given the potential benefits of institutionalizing punishment for insiders, would prosecuting outsider elites yield similar outcomes? That is, can the trial of an outsider be used in similar fashion to show the consequences of defying authority and thereby shore up broader support for autocratic rule? On this note, it is useful to consider the case of Nelson Mandela, the revolutionary leader who was famously prosecuted by the apartheid government of Ian Smith for his resistance to white-minority rule. Mandela’s treason trial was part of a larger series of political prosecutions designed to delegitimize the African National Congress (ANC), a party which was explicitly organized against the white-minority government. Between 1956 and 1961, several treason trials were conducted against ANC leaders, eventually culminating in Mandela’s trial. As contemporary observers noted, the question of guilt or innocence was largely immaterial in these highly politicized cases; conviction was largely taken for granted after nearly five years of persistent persecution of the ANC. However, when Mandela himself was finally called before the court, his trial did more to legitimize rather than delegitimize the ANC’s cause. This was because, rather than submit to the charges for which he stood accused, Mandela used his platform on the witness stand to deliver a

54 An important implication of this discussion is that for political trials to be effective,

they only need to end in conviction in expectation. That is, trials do not need to be fully predetermined (i.e. show trials) in order for obedience to authority to be achieved; as long as conviction is the likely outcome, for reasons outlined earlier, autocrats can engender submission to the status quo.

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searing condemnation of apartheid – testimony that was intended not to prove his innocence, but to discredit the master fiction being propounded by the state. Mandela thus turned the tables on the prosecution, highlighting abuses and hypocrisies of apartheid before an audience of domestic and foreign onlookers. Mandela proved to be an incredibly sympathetic defendant, even more so after he was convicted and sentenced to life imprisonment. Far from vilify Mandela as a political criminal, the treason trial cemented his status as a political martyr.55 Mandela’s controversial prosecution is often used as an example of how judicial strategies can backfire for autocratic regimes.56 But it is also important to underscore that Mandela was an elite outsider and thus already recognized as an opponent to the status quo. By the logic of the theory, a political trial was unnecessary considering that Mandela was an obvious enemy of the state and a convenient target for conventional violence. Furthermore, even if Mandela had cooperated and allowed the trial to run its intended course, it is unlikely that his supporters would have suddenly given up their resistance and rallied behind the idea of apartheid. Bringing Mandela to trial did little to persuade ANC supporters that their cause was criminal or that the negative consequences of their behavior were deserved. Judicializing the punishment of ANC leaders created a narrative of victimization that emboldened ANC supporters, inflaming antagonism to the status quo. While the apartheid regime was able to overcome this challenge, its efforts were arguably more due to extrajudicial repression than the political trials of the ANC. Perhaps the government would have been better off detaining Mandela without trial rather than giving him a prominent platform to amplify his grievances – grievances which were sympathetic, credible, and ultimately damning for white minority rule. The Mandela example underscores a crucial consideration of going to court: Who is the intended audience of a political trial? If the goal is to keep the regime cohesive – that is, to maintain the obedience of the autocrat’s closest supporters – then it reasons that the target audience of a political trial should be those very same supporters. Insider elites are the agents whose submission to the autocrat is essential for the regime to survive; when their submission cannot be guaranteed, a judicial ritual can directly remind this group about the rules of political order; to the 55 As a testament to his enduring popularity and support, following his release in 1990, he

was elected as the first Black African president of South Africa in 1994.

56 Joffe, Goldberg and Mandela (2014).

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extent that such rules are deemed valid, such reminders may help prevent the ruling group from splintering from within. While autocrats probably prefer that outsiders also abide by the same set of rules, autocrats do not ultimately depend upon the submission of outsider elites to survive (at least not in the same way that they depend on the submission of insider elites). In other words, outsider elites, because they are not an essential source of support for the autocrat, should not be the target audience of a political trial. This in turn suggests that outsider threats should be less likely to face prosecution. But what of the reverse scenario: What happens when insiders are repressed extrajudicially? On the one hand, using violence against insiders can generate backlash against the autocrat, particularly among factions that are sympathetic to the autocrat’s victim. The risks of using violence against insiders was seen in Kenya following the brutal murder of ruling party leaders such as Pia Pinto, an elected member of the National Assembly and ruling party stalwart, who in 1965 was the first politician to be assassinated in the newly independent Kenya. Though the crime was ultimately pinned on two teenagers, a widely believed rumor at the time was that President Kenyatta had ordered the murder himself due to Pinto’s growing disagreements with the party leadership. While these rumors never led to a formal accusation, the murder of Tom Mboya only a few years later further exacerbated suspicions within the ruling group that Kenyatta was somehow involved. Mboya had been one of the founding fathers of Kenya, a beloved and prominent leader of the ruling party who was an outspoken critic against government corruption (which he blamed on President Kenyatta) and a viable successor to the presidency. As such, when Mboya was brutally gunned down in broad daylight in 1969 (an execution similar to Pinto’s killing a few years before), many assumed that Kenyatta was the one who had ordered the assassination. These rumors were intensified after the gunman’s arrest when he told the police: “Why don’t you go after the Big Man?”57 It did not take much guessing to assume that the Big Man was Kenyatta. This time, however, rumors of Kenyatta’s involvement were not contained to the chambers of parliament. Outrage over Mboya’s death led to large protests and riots in major cities. At Mboya’s funeral, Kenyatta’s motorcade was actually pelted with rocks, leading to violence ending in

57 Kenya: Unanswered Questions. (1969, December 5). Time.

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hundreds arrested and dozens injured.58 Unrest on the street was amplified in the halls of government among members of the ruling party who demanded justice, leading to a parliamentary inquiry into the murder. Again, Kenyatta was not directly implicated in the inquiry, though his involvement was repeatedly suggested on the floor of parliament. These debates revealed how the assassination of party leaders had fanned the flames of existing grievances within an already fragmented ruling party. As the Kenya case suggests, by turning violence inward, autocrats may unintentionally alienate their own base of support or further splinter the ruling group. But some autocrats are extremely violent against their own supporters and appear to face little to no repercussions for such behavior, at least in the short term. President Idi Amin of Uganda is a notorious example, whose reign of terror led to innumerable detentions, assassinations, and disappearances, regardless of whether the target of his violence was an outsider or insider.59 Amin stayed in power for years before he was finally ousted (a maneuver which was ultimately made possible by the intervention of outside forces). Meanwhile in Malawi, President Hastings Banda, another infamous despot, publicly boasted about detaining thousands of dissidents and even chased his most prominent rivals within the ruling party into literal exile – all without the assistance of courts. While both Amin and Banda occasionally brought their rivals to trial, such cases were the exception rather than the rule. These examples highlight important scope conditions of the argument. In particular, personalist dictators are prone to extreme, arbitrary acts of violence and are furthermore less willing to establish power-sharing institutions with other elites. These types of autocrats should be less likely to use a judicial strategy of repression precisely because they are less likely to institutionalize their authority across any sector of the state, including the courts. The propensity for such rulers to engage in extrajudicial violence is thus greater than would be the case in a more institutionalized autocracy where the autocrat’s commitments to other elites are more credible. In other words, to actually institutionalize the process of punishment, autocrats cannot rule capriciously; some degree of power sharing is necessary.

58 Miller (1969). 59 Examples of violence against insiders under Amin include an event in 1977 when two

prominent ministers and an archbishop were killed in a suspicious car crash, prompting several other government officials to defect or flee into exile. A year later, Vice President General Mustafa Adrisi was injured in another suspicious car crash. The latter case prompted a military mutiny against Amin but this was ultimately quelled.

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What this suggests is that a political trial is not a hammer for all nails. Rather, it is a strategy that is particularly useful against threats to regime cohesion, mainly insider elites, and in contexts where some degree of autocratic institutionalization is possible. 2.2.3 A Cooperative Judiciary: Ensuring the Desired Outcomes of Court Up to this point, I have assumed that whenever autocrats invoke judicial strategies, they are executed according to plan: A political trial helps restore the autocrat’s authority by way of eliminating a political rival. This implies that judges, the actors directly responsible for conducting political trials, execute judgments according to the autocrat’s desired outcomes. On this note, it is useful to revisit Shklar’s seminal definition of political trials as proceedings wherein the “prosecuting party, usually the regime in power aided by a cooperative judiciary, tries to eliminate its political enemies.”60 On what basis can we assume that the judiciary will fully cooperate with the autocrat’s agenda? And if judges are not willingly complicit, what can autocrats do to better ensure that the judiciary cooperates? One obvious solution is to pack the bench with like-minded agents. The “ally principle” states that agents whose interests are more aligned with the center should be more cooperative with their assigned tasks within an agency. At higher levels of government, appointing allies to prestigious positions can also serve as a form of patronage or reward for demonstrated loyalty. Such logic helps explain the appointment patterns observed across many autocratic regimes in postcolonial Africa, where lucrative ministerial portfolios and positions of leadership across the postcolonial state were often bestowed on the basis of loyalty rather than merit.61 It reasons that autocrats would adopt a similar approach with respect to court-packing by reserving key judicial posts for co-partisan cronies who can be more trusted to deliver desired outcomes. However, the ally principal does not always work in practice. Hassan (2017, 2020) illustrates that it is rarely the case that autocrats can completely surround themselves with regime loyalists; even if such agents can be identified, the number of eligible lieutenants will likely fall short

60 Emphasis added.

61 Arriola (2009).

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of the positions that need to be filled.62 These supply-side problems are particularly acute with respect to the judiciary, which is unlike other government agencies in terms of who is eligible to serve. This is because not everyone can be a judge: There are strict guidelines for who can join the judicial corps, usually via some form of licensure or entrance examination that demonstrates proficiency in the legal sector. In this sense, the judiciary is akin to a guild, wherein membership is only open to individuals who satisfy the guild’s professional requirements and closed to everyone else. What does this mean for autocrats seeking to pack the courts with likeminded allies? In short, there are constraints on whom they can bring to the bench. The extent to which the judiciary is professionalized, the more difficult it can be for autocrats to select judges based on loyalties rather than merit.63 On the surface, it seems perplexing that autocrats would allow such technicalities to prevent them from arbitrarily packing the bench with their preferred judges. But it is no accident that autocrats often face such constraints: Professionalizing the judiciary goes hand in hand with institutionalizing the process of punishment. In particular, a more professional judiciary means more competent conductors of court, such that judges have better understanding of the judicial process and laws of the state, making them more efficient executors of political trials. Framed in this light, professional jurists are particularly well equipped to oversee courts in a systematic, routine manner – which is precisely the type of condition that facilitates the institutionalization of punishment. Professionalizing the judiciary thus has considerable advantages for a judicial strategy of repression, though it also often means that autocrats cannot arbitrarily pack the bench with their ideal judges. This is not to say that such candidates do not exist; of course, professional jurists can be partisan cronies. But in practice, this is not always the case. For example, unless the autocrat’s nephew happens to already have a law degree, it is harder to justify making him the chief justice without impinging on

62 Hassan (2020) examines these dynamics in autocratic bureaucracies, wherein the sheer

size and scale of government agencies mean that not every position can be occupied by a member of the leader’s in-group. In the Kenyan case, autocrats strategically assigned less trustworthy agents to positions where they could do the least harm. 63 Such dynamics are also present in developing democracies, as Brierley (2021) finds in the case of Ghana where there are explicit trade-offs between meritocratic recruitment and patronage hiring for public sector jobs.

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the professional integrity of the judiciary. The guild-like qualities of the judicial branch thus serve as a potential constraint on patronage-based court-packing. If autocrats are unable to build their optimal bench, they may instead need to rely on jurists of uncertain loyalty; that is, judicial cooperation might need to be cultivated and compelled. Strategies to rein in the courts can be broadly sorted into ex ante and ex post controls: measures to constrain judicial decision-making in advance and compel judicial obedience after the fact. Ex ante controls include a variety of precautions designed to weaken judicial autonomy before judges even step foot into the courtroom. For example, limiting tenure on the bench and regularly rotating assignments across different courts can be a way of keeping judges dependent on the regime for their continued livelihood and survival. It furthermore limits opportunities for judges to build their own networks of political or economic support beyond the autocrat – connections that might otherwise give judges the confidence or wherewithal to defy orders.64 By contrast, ex post controls are invoked in the aftermath of judicial misbehavior, regardless of whether misbehavior was intentional or accidental. The basic idea is to impose sanctions on judges whenever they rule against the autocrat’s interests and regardless of motive; that is, to repress uncooperative judges and deter other judges from following suit. Examples include arbitrary dismissals, demotions, detentions, and in more extreme scenarios, assassinations of uncooperative judges. In rarer cases, judges have even been disappeared, as was the case for chief justice Benedicto Kiwanuka following growing tensions between the judiciary and President Idi Amin of Uganda. Threats of violence against the judiciary are often credible because, despite their professional autonomy, the judiciary tends to be the most vulnerable branch of government. As Thomas Jefferson famously observed: Having neither the power of the purse nor the sword, judges lack the wherewithal to defend themselves, let alone ensure that their decisions are actually enforced.65 It is somewhat ironic that autocrats should seek to secure judicial cooperation through extrajudicial repression, though this should be seen as a measure of last resort to be invoked when attempts to buy support or otherwise constrain autonomy have failed. But it is also perhaps fitting

64 Hassan (2017) and Woldense (2018) argue that shuffling officials across the state helps

ensure compliance to the autocrat in vast government agencies.

65 Gibson (1992).

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that a judicial strategy of repression begins and ends with the threat of violence – the threat of violence against judges. Explaining Extrajudicial Strategies Against the Judiciary Given that the centerpiece of this chapter is a theory that explains the benefits of institutionalizing punishment in courts, the preceding discussion begs the question: Why not put uncooperative judges on trial? If courts ultimately serve to restore order, should the guardians of court not be held accountable by those very same institutions? To answer these questions, it is useful to revisit the underlying premise of a judicial strategy of repression, which is to enforce or restore obedience to authority when regime cohesion is under strain. But an uncooperative judge is not an immediate threat to regime cohesion, at least not in the same way as an insider elite seeking to topple the autocrat. Simply stated, coup d’etats are not led by rebellious judges. The other dynamics of insider rebellion – including the relatively covert intentions, as well as the uncertain locus and scope of the conspiracy – are also less relevant with respect to the judiciary. This is because an uncooperative judge is not particularly discreet in their dissent: They have clearly identified their position through their judgments in court and are thus a clear focal point for extrajudicial violence. In fact, that judges must literally sign their rulings serves as a further deterrent to misbehavior, since judges are aware that their political future lives and dies by their own judgments. In light of these dynamics, it reasons that if judges can be made to cooperate through extrajudicial repression, then this is what autocrats should do. Better to threaten judges into submission out of court rather than risk further acts of judicial defiance by putting judges themselves on trial.

2.3 observable implications This chapter has presented a theory to explain why a judicial strategy of repression emerges in autocratic regimes. I argue that the advantage of courts lies in their narrative power, wherein courts provide platforms to propound simple, digestible narratives about conflict that are favorable to autocrats and unfavorable to their rivals. In particular, by staging a political trial, or judicial ritual, autocrats can showcase the consequences of rebelling against authority and dissuade future rebellion. However, the success of a judicial strategy depends on trials going according to plan, narratives that can be upended depending on who is being prosecuted and who judges.

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This leads to several observable implications. First, a judicial ritual should help autocrats institutionalize the process of punishment of political rivals and restore obedience to authority. That is, we should expect to see greater submission to the autocrat in the wake of a political trial. Second, with regards to who should go to trial, a judicial approach should be reserved for insider threats, whereas extrajudicial violence should be used against outsider threats. Third, as autocrats institutionalize the process of punishment, they impose constraints on whom they can bring to the bench. With regards to ensuring a cooperative judiciary, if ideal candidates cannot be secured, autocrats may be forced to rely on a variety of ex ante and ex post measures to compel judges to obey. The remainder of this book is devoted to evaluating these claims in historical perspective by turning toward postcolonial Africa.

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3 Reading a Judicial Ritual

Judges behind a table, representing a third party standing between the people who were ‘screaming for vengeance,’ and the accused who were either ‘guilty’ or ‘innocent;’ an investigation to establish the ‘truth’ or to obtain a ‘confession;’ deliberation in order to find out what was ‘just;’ this form was imposed in an authoritarian manner. — Michel Foucault, “On Popular Justice: A Conversation with Maoists”

Chapter 2 laid out a theoretical framework to explain why a judicial strategy of repression emerges in authoritarian regimes. The argument centered upon the process of a political trial, whereby the machinery of criminal justice is used to establish shared narratives about conflict and restore obedience to authority. This chapter unpacks the first pillar of the theory – the meaning of a judicial ritual – by examining a specific episode of political justice in postcolonial Kenya: the 1971 sedition trial, the first such case to be prosecuted in Kenyan after independence. By focusing on this case, my intent is to rigorously detail the ceremony of a judicial ritual; to examine how this ritual helped institutionalizes the process of punishment in court; and to explain why such a process ultimately reinforced regime cohesion. While a deep-dive, within-country study can have limited generalizability, profiling this episode is still analytically productive toward illustrating key mechanisms of the theory, mainly the generation of shared beliefs, or common knowledge, over the course of political trial. Furthermore, there are several aspects of the Kenyan case that resonate with other postcolonial African autocracies, issues which I discuss in the concluding section. In subsequent chapters, I generalize these findings using large-N 54

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analysis and case studies of other postcolonial autocratic regimes. For now, however, my intent is singular: to identify why a political trial was valuable toward establishing law and order under the one-party regime of Jomo Kenyatta.

3.1 background: rise of a one-party state in kenya By the time of Kenya’s first presidential election in December 1964, the Kenyan African National Union (KANU) had already proven its supremacy on the national stage. Only a month prior, KANU’s main contender the Kenya African Democratic Union (KADU) experienced a poor showing in the independence elections. KADU subsequently dissolved and its members joined KANU, making Kenya a de facto one-party state. The merger of these two parties reflected President Jomo Kenyatta’s catch-all approach to governance, a strategy which relied on incorporating diverse ethnic and socioeconomic groups into the ruling party fold.1 In theory, an inclusive one-party platform encouraged debate as a way to defuse tension and produce compromise. In reality, ensuring regime cohesion was a careful balancing act, one that sometimes failed to prevent defection and the emergence of new opposition. Intra-regime rivalries were epitomized by the rise of the so-called Backbenchers, a faction of the ruling party whose members felt increasingly marginalized by Kenyatta and other senior ministers. Henry Wariithi, Kenyatta’s former legal adviser and chief of the Backbenchers, explained that the group’s intent was to serve as a watchdog for the party leadership and would attempt to block key legislation and mobilize behind other party leaders should Kenyatta try to marginalize their voices in government.2 From 1963 to 1964, the Backbenchers made good on their threats by blocking the passage of several bills sought by the party leadership. In 1965, the Backbenchers took their protest to the streets by staging a march ending at party headquarters in the capital Nairobi, which at the time local press reported it as an “attempted party coup.”3 These disruptive actions ultimately forced Kenyatta to make concessions to the Backbenchers by instituting a forum for regular consultations within parliament. 1 Particularly significant was the coalition among the Kiambu Kikuyu elite, the Luo labor

faction of Tom Mboya, as well as the populist Odinga-Kaggia alliance between Luo and lower-income Kikuyu (Widner, 1993). 2 Widner (1993). 3 The National Archives (TNA): Foreign Office (FO) 371/183820.

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Appeasing the Backbenchers was partly motivated by concern that factionalism left unchecked could lead to defections and the founding of opposition parties. As it would come to pass, KANU experienced its first major split in 1966, just two years after independence, when Vice President Oginga Odinga defected from KANU to form the Kenya People’s Union (KPU), a left-wing opposition party that was opposed to Kenyatta and the Kikuyu leadership and soon flanked by Odinga’s supporters from the KANU rank-and-file. Prior to his resignation, Odinga had been one of Kenyatta’s most vocal critics within the ruling party and a viable successor to the presidency. The founding of the KPU thus not only revealed Kenyatta’s failure to build a truly catch-all party, but also helped quantify the size of the Odinga threat: only a few days after Odinga’s resignation from KANU, twenty-nine ministers walked across the floor to join the KPU, representing nearly a quarter of total seats in parliament.4 While this mass defection was insufficient for the opposition to gain a legislative majority, the sudden and dramatic turnover of party seats laid bare Kenyatta’s failure to truly establish regime cohesion. 3.1.1 Rivals to Power: Potential Successors to the Presidency Events such as the founding of the KPU and the mass defection of ruling party operatives made Kenyatta’s monopoly on power seem increasingly elusive. Exacerbating matters was Kenyatta himself. By the time Kenya became an independent nation-state, Kenyatta was already quite old. Although his seniority had been an asset during the anti-imperial uprising – it helped cultivate his image as an elder patriarch and thus a natural founding father of the fledgling nation – fears of a succession crisis only intensified as Kenyatta aged in office. Speculation that Kenyatta’s grip was slipping only intensified after the emergence of viable successors to the presidency, both without and within the ruling party. An obvious candidate was Oginga Odinga, Kenyatta’s former vice president and now leader of the opposition KPU. Another likely successor was Tom Mboya, a prominent leader of KANU with a long and impressive political résumé. Mboya had occupied several prestigious ministerial positions over the course of his government career, including Minister of Labor, Minister for Justice and Constitutional Affairs, Minister for Economic Planning, and Secretary General, and had furthermore served as chief draftsmen of the ruling party manifesto. Mboya also enjoyed broad popularity among different ethnicities, including his Luo coethnics, earning him the reputation as 4 TNA: FO 371/183820.

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one of the few members of KANU who was able to generate crosscleavage appeals. While this made Mboya a valuable agent of regime cohesion, it also made him a potential rival to Kenyatta and the Kikuyu leadership. This was because laws of succession required that presidential candidates first receive nomination and a vote of support from within the party; given his sizable support among local KANU branches across the country, especially Luo districts, Mboya likely had the votes.5 The Limits of Conventional Repression and Co-optation In 1969, the succession question took a dark turn when Mboya was assassinated. The manner of execution drew comparisons with another brazen murder in broad daylight from a few years before, one which was assumed to have been politically motivated.6 In Mboya’s case, witnesses alleged that the assassin had made his getaway in a government vehicle.7 Public outrage over the killing of a beloved leader was immediate, leading to riots and protests across the country, including Mboya’s home district. Even Mboya’s funeral procession was marred by violence that escalated into a dangerous confrontation between protesters and police involving tear gas and baton charges.8 While a low-ranking army engineer was ultimately tried and convicted of the murder, many speculated that the killing was ordered by Kenyatta himself. These rumors were fuelled by the alleged assailant’s own statement during his police interrogation, wherein he asked his arresting officers why they had not gone after “the Big Man” (whom many assumed to be Kenyatta). Odinga meanwhile condemned the government’s attempt to “clear certain groups” and used the incident as evidence of the authoritarian, oppressive nature of KANU, stoking sympathy and support for the opposition KPU.9 Rather than evict a political rival from the scene, Mboya’s extrajudicial execution (and fallout thereafter) sparked waves of public disorder across the country and further inflamed existing tensions within the regime. In the wake of growing public disorder, attempts to restore unity within the upper levels of parliament produced mixed results. While Kenyatta attempted to appease Mboya’s constituencies by appointing Luos to key

5 Miller (1969). 6 Pia Pinto, a KANU stalwart, became the first assassinated politician in independent Kenya

when he was shot down at the gate to his house in Nairobi on February 24, 1965. At the time, he was a nominated member of parliament and a close ally of then – Vice President Oginga Odinga (TNA: FO 371/183820). 7 Miller (1969). 8 Miller (1969). 9 Miller (1969).

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posts in the government,10 he simultaneously filled other key positions with his co-ethnic Kikuyus, stoking fears of Kikuyu domination at every level of the postcolonial state.11 Efforts to co-opt or buy support thus lacked credibility among many faction leaders, and as such did not fully reestablish calm among the ruling elite, nor did it silence Kenyatta’s critics within KANU. The broad takeaway from this episode is that neither repression nor cooptation were sufficient to stem the tide of growing discontent, disobedience, and violence under the one-party regime. To the contrary, there were increasingly loud rumblings that KANU was a weak, splintering party and Kenyatta himself was unfit for office. A newspaper headline from 1971 published by a local news organ captured the sentiment of the time, which was that Kenyatta could not control his own people – hardly the image of a powerful president.12

3.2 a judicial ritual to restore order and obedience By the early 1970s, Kenyatta and KANU thus confronted a precarious path toward one-party consolidation. Regime cohesion was of immediate concern, a necessary (though not sufficient) condition toward preventing the chaos and disorder threatening to destabilizing neighboring countries. In this section, I show that these challenges were not overcome through strategies of co-optation and repression alone: Judicializing punishment helped restore law and order at a critical moment in Kenyatta’s presidency when regime cohesion was under considerable strain. A political trial was particularly useful toward restoring confidence in Kenyatta’s authority and silencing rumors of his fading power. The 1971 sedition trial should thus be seen as a judicial ritual: a formal ceremony of justice performed in a court of law that helped restore obedience to authority. The ritualistic dimensions of the trial were conveyed by its symbolic performance, wherein the accused, the prosecution, and 10 Joseph Odero-Jowi became Minister for Economic Planning and Development, taking

over Mboya’s post at the time of assassination; Robert Ouke took Odero-Jowi’s place as Minister for Finance and Administration in the East African Community; and John Okwanyo was appointed to Assistant Minister for Foreign Affairs (Miller, 1969). 11 Miller (1969). 12 The National Archives (TNA): Foreign Commonwealth Office (FCO) 31/856: Political detentions in Kenya: trials of plotters accused of conspiracy to overthrow Kenyan Government.

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the judge personified the conspiracy, the state, and the law, respectively. Once assembled in court, each actor adhered to a prescribed sequence of opening arguments, witness testimonies, courtroom confessions, and closing statements – proceedings that were expressed in the language of the law, which restricted the literal terms of debate and thus enabled the prosecution to better dictate the narrative of the trial. By the end of these judicial proceedings, attacks against the president had been portrayed as criminal offenses deserving of punishment by the state, a story which was further validated by the conviction of the accused. 3.2.1 The 1971 Sedition Trial The events leading to the 1971 sedition trial were as follows: In May 1971, a group of civilian and military elites were implicated in a conspiracy to overthrow the government, including plans to assassinate Kenyatta and to bomb Parliament. At the time, however, news that a plot had been discovered and already defused was a surprise to many observers.13 The shocking nature of this announcement has led some to question the veracity of the conspiracy or the extent to which it posed a serious threat to the regime leadership. As I explain in the following sections, regardless of whether the plot was genuine or fabricated, it was prosecuted by the state as if the conspiracy was true. This proceeding thus served as the basis for collective understanding of the rules of political order at a time when regime cohesion was under strain. The Accusation: Sedition The official charge filed by the state was of sedition, a broad category of criminal offense describing activities wherein an individual or group “compasses, imagines, invents, devises, or intends … the death, maiming, or wounding … of the President [and also] expresses, utters or declares any such compassings, imaginations, inventions, devices or intentions by publishing any printing or writing or by any overt act or deed, is guilty of treason.”14 Notice that the law of sedition was specifically targeting behaviors against the president, not the state. The trial was thus about acts of defiance against Kenyatta personally. Furthermore, by invoking

13 TNA: FCO 31/856. 14 See Penal Code (Amendment) Act, No. 24 of 1967, §2, amending §56 of the Penal Code

regarding seditious intent and §57(1) of the Penal Code that defines sedition itself.

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terms like “imagine” and “invent,” the law of sedition cast a wide net, allowing for loose interpretations of subversive activity and intent. Such language furthermore lowered the bar for conviction because it did not require physical action or boots on the ground for a crime to have taken place. The Accused: Who Was Actually Brought to Trial? While Kenyan intelligence was able to outline the rough contours of the conspiracy, identifying the individuals responsible for coordinating the plot was less straightforward. Confusion, ambiguity, and hesitancy at the topmost levels of government became apparent in conversations between Kenyan and British government officials, the latter of whom were stationed at the British High Commissioner’s Office in Nairobi and documenting the unfolding details of the conspiracy with great interest. Particularly revealing in this regard are conversations between Attorney General Charles Njonjo and the British High Commissioner that were documented by the latter. These conversations not only explain the logic of who was indicted, but furthermore provide a rare look at the prosecutorial processes, which usually happens behind closed doors. As Njonjo explained over multiple private meetings, a key difficulty for the Kenyan government was the mounting evidence of insider complicity at the topmost levels of state, particularly among non-Kikuyu factions of the ruling elite. That the conspiracy was so close to the center was alarming to Kenyatta and other Kikuyus, but the fact that virtually anyone within the ruling group could potentially be complicit made it imperative to defuse the conspiracy at its source; that is, to root out the internal ringleaders. However, the secrecy of the plot (a distinctive feature of insider rebellion) made it fundamentally difficult to identify who was involved as well as how much support they actually enjoyed. Concerns that such a conspiracy could thrive under covert conditions had long been on the minds of the KANU leadership, as Njonjo himself had declared on the floor of the National Assembly only a few years before: If people are going to hold meetings in secret, if people are going to whisper in corners and they do not come out in the open and make a public statement saying, ‘We oppose the Government, we are going to subvert the Government, we are going to topple the Government.’ How are we going to know? How are we going to bring a charge when we have no evidence and yet we know that these things are taking place?15

15 Njonjo, Charles. (June 2, 1966). Constitution of Kenya Amendment (No. 3) Bill. Kenya

National Assembly Official Record. Hansard 9(1). 1st Parliament, 4th session.

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Njonjo’s statement was made in reference to the introduction of a controversial Preservation of Public Security Bill granting the state considerable powers to detain without trial anyone posing a menace to public order, ranging “from minor disturbances to a coup d’etat.”16 It is thus notable that despite having this law on hand – and despite the lack of concrete evidence tying specific insiders to the conspiracy – Njonjo moved forward with the prosecution of the 1971 plot. At the same time, Njonjo acknowledged that the lack of clarity regarding the locus and scope of who was involved made the question of whom to prosecute “an awkward one.”17 The situation was made more awkward by rumors that insider elites from the same ethnic faction across parliament, the military, and the judiciary were likely complicit: the Kamba member of parliament Gideon Mutiso, the Kamba Chief of the Defence Forces Ndolo, and the Kamba Chief Justice Kitili Mwendwa. As Njonjo observed, it would “unsettle the Kamba faction considerably to have one of their leading MPs and their Chief of Defence Staff publicly disgraced or punished, and their Chief Justice mentioned in a most damaging way in the same context.”18 So who was ultimately brought forward to stand trial? In May 1971, twelve civilian elites and military officers were cast by the prosecution as ringleaders of the plot.19 The most prominent name on the charge sheet was KANU parliamentarian Gideon Mutiso, one of the original suspected conspirators. Mutiso was a former assistant minister in the Kenyatta’s cabinet who had fallen out of favor after becoming critical about Kikuyu favoritism within the ruling elite and opposing the increasingly conservative platform of KANU.20 Mutiso had also developed a reputation for speaking out against extrajudicial repression, as he did on May 21, 1971: Mr. Speaker, when we come to the preservation of Public Security Act, 1960 … although I know that any person in power and any government in authority would like to feel that they are secure … and have they grip of the country at their fingertips, no government worthy of its name, civilized or barbaric should have laws

16 Njonjo, Charles. (June 2, 1966). Constitution of Kenya Amendment (No. 3) Bill. Kenya

National Assembly Official Record. Hansard 9(1). 1st Parliament, 4th session.

17 TNA: FCO 31/856. 18 TNA: FCO 31/856. 19 The accused included Apollo Abraham Wakiaga Odare, the former personal secretary of

Mboya who had since the latter’s assassination held several civil service posts and was then serving as the executive of a government marketing board, Joshua Omoth Ooko, a KANU councillor in the Nairobi City Council, and Joseph Daniel Owino, a military officer who in 1963 had been court martialled and found guilty for inciting troops to mutiny, though was later pardoned by Kenyatta (TNA: FCO 31/856). 20 TNA: FCO 31/856.

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where they can just lock in people when they like without taking them before a court of law. … If any person is guilty of any offence, take him to court. Give the lawyers some work to do. This is why we have courts of law. … Otherwise, there is no need of having courts of law, if you can lock in people and let them decay in detention camps.21

When Mutiso concluded his speech, there were cheers of “Hear! Hear!” from other member of parliament. But no one came to Mutiso’s defense a few days later when he was detained under the very same Public Security Act, a story that was featured on the front page of The Daily Nation newspaper (Figure 3.1). Shortly thereafter, he appeared in court for his alleged role in masterminding the sedition plot. As Mutiso was being placed center stage in the conspiracy, Njonjo opted not to bring charges against Ndolo and Mwendwa despite his suspicions that both were “up to the ears” in the plot.22 Rather, Njonjo explained to British officials that the state was “weighing its options” with regards to who should actually appear in court.23 But why was Mutiso singled out for prosecution while Ndolo and Mwendwa were not? Evidence suggests that the prosecution wanted to intentionally conceal the true scope of the conspiracy and thus downplay its likelihood of success. Njonjo revealed as much in his meetings with the British, observing that to indict a member of the ruling party, the chief justice, and the chief of the defence forces for sedition could severely undermine confidence in the integrity of the postcolonial project. These concerns were further exacerbated by ongoing crises in other African countries, including the January 1971 military coup in neighboring Uganda that ousted President Milton Obote and installed the military junta of General Idi Amin. Such events underscored the threat of armed rebellion and furthermore showed the dangers of a house divided between political and military elites; it was plausible that Kenya could become like Uganda if military insurrection could not be contained. Delimiting the contours of the conspiracy was a delicate balancing act: Njonjo had to both convey the seriousness of the offense – mainly, that there was no higher crime than defying the president – while also minimizing the likelihood of the plot having a real chance of success. 21 Mutiso, Gideon. (May 21, 1971). Motion – Repeal of Certain Statutes. Kenya National

Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 23 TNA: FCO 31/856.

22 TNA: FCO 31/856.

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figure 3.1. Front page story from The Daily Nation, a Kenyan newspaper, detailing Mutiso’s detention and impending trial Source: TNA: FCO 31/856.

The decision to shield certain individuals (i.e., Ndolo and Mwendwa) from prosecution could thus be seen as a strategic maneuver to control broader perceptions of the scope of the conspiracy. In any respect, the involvement of both Ndolo and Mwendwa was more speculative than concrete, and by keeping them out of the courtroom, the state was able to marginalize their role, if any, in masterminding the plot. But Mutiso, a ruling party official who had already openly criticized Kenyatta’s policies on the floor of the National Assembly, was a more obvious candidate for prosecution.24

24 Though Ndolo escaped prosecution in court, he quickly and quietly stepped down from

his post as Chief of the Defence Forces and retired to the countryside – a decision that was likely demanded by Kenyatta and compelled by other military elites. As for Mwendwa, he too faced considerable pressure to resign, specifically a concerted campaign of

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The Prosecution’s Narrative: A Plot Doomed to Fail Recall that, as argued in Chapter 2, the purpose of a political trial is to instrumentalize the judicial process as a means to eviscerate a political rival. In the Kenyan case, the sedition trial delivered a story of defiance and disgrace; that is, a doomed plot against the president. As the trial unfolded, the overarching concern appeared to be the restoration of law and order – not uncovering the facts of the case. Under Njonjo’s direction, Prosecutor James Karugu laid down details of the plot before the presiding Senior Magistrate S. K. Sachdeva. The prosecution’s evidence was based almost entirely on statements from the accused derived from police and military interrogation, and further details were corroborated during in-court testimony. According to these accounts, the plotters had blamed Kenyatta for rampant corruption as head of state and were furthermore aggrieved by his suspected role in orchestrating the infamous political assassinations of Mboya and Pinto. Their plan was to overthrow the KANU leadership and hang Kenyatta after which the new government would announce itself to the general public through a statement prepared by Mutiso. The prosecution also alleged that the plotters had recruited foreign assistance in their conspiracy: in Dar es Salaam, Tanzania, Daniel Owino had purportedly coordinated with a local professor to seek military support from President Julius Nyerere; the head of the American Federation of Labor and Congress of Industrial Organizations Irving Brown had also been approached for the organization’s endorsement and assistance in carrying out the coup.25 Over the course of the trial, the prosecution belabored the idea of Mutiso as ringleader of the conspiracy, casting him as the main intermediary between civilian and military plotters. Mutiso was also accused of being the chairman of the planned revolutionary council had the coup succeeded. The evidence behind these allegations included intelligence reports from Kampala and Dar es Salaam, but was largely based on hearsay, including testimony from a fellow member of Parliament who claimed to have been shown a draft of a coup proclamation document

harassment from the party leadership while the trial was in train. Thus like Ndolo, Mwendwa would eventually retire, quietly, a mere days after the trial’s conclusion (TNA: FCO 31/856). 25 Hoagland (1971a).

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by Mutiso, as well as allegations from Owino made under military interrogation.26 As the prosecution built its case against Mutiso, they were careful to avoid referring directly to Ndolo and Mwendwa’s names in court. At the same time, efforts were also underway outside of court to smear the reputation of both officials and thus jeopardize their political futures. For Ndolo, rumors that he was the true mastermind of the plot made it all the way to the foreign press, which some speculated was actually part of a smear campaign to tarnish his reputation both at home and abroad and ultimately force his early retirement.27 In Mwendwa’s case, a similar effort to destroy his reputation by association was unfolding in the popular press: The East African Standard, a local paper with close links to the Kikuyu KANU elite, featured the Chief Justice’s photo prominently on the front page alongside that of the plotters.28 What are we to make of these rumors and media campaigns that ran in parallel to the proceedings of court? On the one hand, perhaps the prosecution simply lacked definitive evidence binding Ndolo and Mwendwa to the conspiracy, and as such had to resort to extrajudicial tactics to dispose of both suspects. But recall that the law of sedition cast a wide net that could be interpreted as any level of “imaginings” designed to undermine the sovereign. It would thus have been reasonable under existing law to bring both Ndolo and Mwendwa to trial. What this suggests is that the decision not to prosecute either individual had less to do with the strength of the state’s case against them and more to do with the ultimate objective of the political trial: to restore order and obedience. That is, the facts of the case were immaterial because the prosecution’s priority was to deliver a simple, legible story of failed rebellion. In addition to restricting which information was presented before the court, the prosecution also managed to control how this information was delivered. When the prosecution called upon the accused to testify, the latter expressed contrite, emotional confessions on the stand and some made histrionic appeals to Kenyatta himself, begging for his forgiveness “in an almost childlike way.”29 Even Mutiso, the member of KANU who had only weeks before criticized Kenyatta’s draconian rule on the

26 TNA: FCO 31/856. 29 TNA: FCO 31/856.

27 Hoagland (1971c).

28 Hoagland (1971b).

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floor of the National Assembly, was now in court pleading for mercy: “I have come to you Mzee [Kenyatta] as your lost son. Accept me as such, Mzee, and let everyone at home rejoice once more for the lost son has returned.”30 Mutiso’s dramatic about-face reinforced perceptions among the observers of court that the conspirators lacked “sufficient belief in the rectitude of [their] cause to defend [their] actions in any way.”31 Of course, that Mutiso and the other accused were denied the right to counsel (and were suspected of delivering these confessions under considerable duress) meant that they lacked the wherewithal to defend themselves against the charges. The prosecution thus conveyed a carefully controlled narrative that both underscored the seriousness of the offense but also made clear that the plot was doomed to fail from the outset. Or, as was summarized in the British High Commission’s summary of the trial. the conspiracy was “half-baked with only a chance in a million of success.”32 If one were to take these proceedings at face value, Kenyatta was never in real danger; he had merely been challenged by rebellious fools who required disciplinary intervention. The real crime was the presumption that Kenyatta’s authority could be contested in the first place. Concluding the Trial: Linking Crimes with Consequences On June 9, 1971, Senior Magistrate Sachdeva delivered his final verdict. Ignoring pleas of clemency and pledges of loyalty from the accused, Sachdeva found all of the defendants guilty. Mutiso was sentenced to nine and a half years, which was close to the maximum penalty for crimes of sedition.33 In defending his decision, Sachdeva told the court that punishment was warranted considering that such plots could turn into a “spark, judiciously placed, that could cause a fire destroying years of work in one minute.”34 The final verdict thus served as the punitive conclusion to the judicial ritual, illustrating in concrete terms the consequences of defying authority. Notably, a few weeks later, Ndolo quietly stepped down from the Defence Forces and spent the remainder of his life in retirement; shortly thereafter, Mwenda resigned as Chief Justice.

30 TNA: FCO 31/856. 31 TNA: FCO 31/856. 33 Hoagland (1971c). 34 Hoagland (1971c).

32 TNA: FCO 31/856.

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3.2.2 Effects of the Trial: Signs of Submission to Kenyatta Was the judicial ritual effective in its aims? Did it actually restore obedience within the regime? Answering these questions requires determining whether insider elites actually observed these proceedings. Though we lack records of who actually attended the trial in person, sources from the British archives provide various evidence that ruling party elites, British officials, and members of the local and foreign press were able to observe the proceedings of court, both directly or indirectly.35 In addition, Hansard reports of proceedings from the Kenyan National Assembly reveal that the sedition case was debated by members of parliament on the House floor. These transcripts are a real-time account of what was discussed about the pending trial within the halls of government. As such, they provide a rare, contemporaneous record of how the judicial ritual influenced the literal terms of political debate. One particularly illustrative exchange occurred on the floor of the National Assembly on June 18, 1971, during a motion to hold a vote of confidence in the president. Member of Parliament Joseph Gatuguta, who led the motion, referred to the “recent shocking and illegal political activities on the part of some misguided individuals in the Republic of Kenya” as cause for the House to express its “fullest confidence in His Excellency Mzee Jomo Kenyatta’s leadership and in the Government of Kenya, and further declares its determination to loyally support the President and the Constitutional Government of Kenya as by law established.”36 As Gatuguta argued, holding a vote of confidence would formalize what was already widely accepted to be true among supporters of Kenyatta: that the accused were guilty and would be punished in due course. He continued: Everyone in this country knows what has been happening in the last few days. I would like, first of all to express my thanks and, I think, am speaking on behalf of many Members in the House, to our security force for having been able to discover these barbaric criminals who were attempting to plot against the Constitutional Government of our country … if they were not able to discover these criminals, many of us would not have been in this House today. 35 British officers were sending regular real-time reports back to the UK Home Office. See

TNA: FCO 31/856: Political detentions in Kenya: trials of plotters accused of conspiracy to overthrow Kenyan government. 36 Gatuguta, Joseph. (June 18, 1971). Confidence in the President’s Leadership and Government. Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session.

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While Gatuguta claimed to speak for KANU as a whole, some members took umbrage at his remarks, particularly his presumption that the outcome of the still-ongoing trial was a foregone conclusion. Member of Parliament Jean-Marie Seroney raised a point of order by arguing that Gatuguta’s statement was “infringing the sub judice rule because … what he is saying now is calculated to affect a case which is pending.”37 However, Seroney was rebuffed by Speaker of the House Fred Mati who cited the guilty pleas of the accused as reasonable cause for assuming that the case was effectively closed (even though the trial had yet to conclude). The speaker then warned Seroney and others against further attempts to “mislead the House” by using arcane points of order to defend the rights of the accused.38 At this point in the debate, the dangers of dissent were cast in sharper relief. As Gatuguta explained, “before I continue with the Motion … I am very much surprised to find that there are some people who are trying to disrupt this Motion and are attempting to be sympathetic to criminals – people who were trying to destroy this House. They should get no sympathy at all.”39 Gatuguta thus implied that to question the prosecution’s case was akin to harboring sympathy for the presumedguilty defendants. It is useful to recall here that the law of sedition in Kenya covered any perceived act of imagined or actual undertaking to undermine the president. In other words, to imply that someone was sympathetic to the defendants on trial was tantamount to saying said sympathetic person was complicit in the conspiracy. This remark led to a tense exchange between Speaker Mati and Seroney, the latter of whom was accused of provoking trouble and questioning “facts” that Seroney purportedly knew to be true. The exchange was so heated that member Wafule Wabuge interjected: “Mr. Speaker,

37 Seroney, Jean-Marie. (June 18, 1971). Confidence in the President’s Leadership and

Government. Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 38 “Unless you have some other purposes for trying to mislead the House, you cannot quote anywhere that I said that because a matter was being investigated by the police, it was sub judice. On to the contrary, I have told ministers that they could not plead sub judice if the matter was just being investigated. It is on record. If you read your Hansard you will see that. So do not try to mislead the house.” Source: Mati, Fred. (June 18, 1971). Confidence in the President’s Leadership and Government. Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 39 Gatuguta, Joseph. (June 18, 1971). Confidence in the President’s Leadership and Government. Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session.

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I am now becoming rather perturbed. When a members says that … my point of order demonstrated my sympathy to the criminals, can he substantiate this allegation? Has he gone into my mind to know what I am sympathizing with the criminals?”40 The speaker tersely replied that perhaps Gatuguta had spoken out of term by accusing Seroney of harboring sympathy with the plotters, but the original point of order was still based on issues that the speaker claimed “were not true and you knew they were not.”41 Gatuguta closed his remarks by observing that “here in Kenya, people are free to speak their mind. In this House, we have been extremely free to criticize our own Government. What we have been against is subversion. As long as we are alive, we shall fight against anybody who tries to introduce subversive methods in this country.”42 Reading between the lines, a more accurate assessment of Gatuguta’s motion was to crystallize the parameters of acceptable debate, or to establish a set of uncontested “facts” regarding the sedition trial. But were these so-called facts actually taken at face value? Parliamentary transcripts provide clues that consensus was indeed achieved, at least superficially. For example, peppered throughout Gatuguta’s remarks were verbal interjections of support from other members, including shouts of “Hear! Hear!” and “Tell them!” from the House floor. Regardless of their private beliefs, an outward consensus was clearly converging around the supposed guilt of the accused. For the individual parliamentarian participating in these proceedings, witnessing general expressions of agreement would have been a compelling demonstration of support for the prosecution’s case, and by extension, the president. As for the individuals who dared to dissent against this growing consensus, their own loyalties were questioned and their character attacked. Indeed, any expression of doubt or misgiving about the conduct of the still pending trial could make oneself the next target – that is, a potential defendant in the dock. Recall that this is precisely what had happened to Mutiso who was charged with sedition only days after publicly 40 Wabuge, Wafule. (June 18, 1971). Confidence in the President’s Leadership and Govern-

ment. Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 41 Mati, Fred. (June 18, 1971). Confidence in the President’s Leadership and Government. Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 42 Gatuguta, Joseph. (June 18, 1971). Confidence in the President’s Leadership and Government. Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session.

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criticizing the regime’s repressive practices. Mutiso’s example was a tangible reminder to other members of the consequences of speaking their mind, a point driven home by Vice President and Minister for Home Affairs Daniel Arap Moi: “I would like to tell hon. Members in this House that by passing information by a word of mouth could be subversive and could lead someone to the garden path without knowing. Therefore we should guard our tongues.”43 Such exchanges reveal how common knowledge about the trial was formed in real time, a process which required suppressing contrarian opinion. Tellingly, by the end of the debate, the vote of confidence in Kenyatta – and by extension the condemnation of the defendants on trial – passed unanimously.

3.3 demonstrations of loyalty as the trial comes to a close The sedition trial delivered a warning to Kenyatta’s rivals: Defy the rules of order and there will be consequences. By the time the trial drew to a close, demonstrations of Kenyatta’s strength had become increasingly ostentatious, perhaps most notably through large loyalty rallies staged across the country.44 These rallies were promoted in the popular press (see Figure 3.2) to ensure wide turnout across the country. Most of these demonstrations consisted of KANU leaders pledging loyalty to Kenyatta on a stage before a general audience, performances that echoed the obsequious speeches being made in parliament. Presenters at these rallies also discussed the sedition trial, conveying its story in ways that were more comprehensible to a lay audience. In one such demonstration on June 27, 1971, President Kenyatta spoke before an audience of an estimated 60,000 observers. Addressing the crowd, Kenyatta downplayed the threat posed by the “traitors” on trial: “when the frogs make a noise, they do not prevent the cattle from drinking water.”45 Unlike political trials, loyalty rallies required more active participation from the audience and citizens who did not sufficiently demonstrate their loyalty could face harsh repercussions. One example cited in British

43 Moi, Daniel. (1971, June 18). Confidence in the President’s Leadership and Government.

Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session.

44 TNA: FCO 31/856: Political detentions in Kenya: trials of plotters accused of conspiracy

to overthrow Kenyan Government.

45 TNA: FCO 31/856.

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figure 3.2. Front page story from The Daily Nation, a Kenyan newspaper, urging Kenyans to attend the June loyalty rally Source: TNA: FCO 31/856.

intelligence reports concerned an unnamed man from Kilifi District who was charged with creating a disturbance likely to cause a breach of the peace. His crime? Describing people who took part in the loyalty demonstration on June 27 as “fools.”46 In the wake of such demonstrations, Vice President Moi issued a statement warning that any civil servants who were connected with subversive activities or who cast aspersions on the government would be purged and severely dealt with. By July 5, the police had started arresting so-called mischief-makers and rumor-mongers.47 Loyalty rallies were designed by party leaders to appeal to the masses, but they also created a positive feedback loop within the halls of government, which further reinforced notions that Kenyatta’s support was unshakable. One member of Kenyatta’s cabinet actually cited crowd size

46 TNA: FCO 31/856.

47 TNA: FCO 31/856.

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as confirmation of the regime’s exceptional popularity: “The mammoth rally, which was attended by two million people—I would like to challenge hon. Members to tell me of any other country which has ever organized a rally which was attended by even half that number—one million people.”48 It should be noted that while this number cannot be verified, contemporaneous accounts from British intelligence suggest that the largest rally had at most 60,000 in attendance.49 Rallies actually became the main focus of parliamentary debate in late June and early July: precisely when the trial was coming to a close. On June 29, 1971, Vice President Moi delivered the following opening remarks: This House has a reason to feel particularly gratified by the overwhelming turnout of the people of this country for these are our constituents, the people who elected us, affirming their unswerving loyalty to the Government of which we are part and to the Father of this nation. I know, Mr. Speaker, I am right in saying that this demonstration of loyalty is exactly mirrored in this honorable House and I would like to say to His Excellency the President that we in this House will affirm our loyalty to him and his Government.

In this passage, Moi described the scope of Kenyatta’s support both across the country and within the government in terms of national unity. After all, Kenyatta was the “Father of this nation.” Moi thus set the tone of the debate that followed: Over the next four days, the House floor was occupied by a steady stream of parliamentarians who delivered individual statements of “Appreciation of Massive Demonstration of Loyalty to the President.”50 No other topics were discussed. Most of these statements were unsurprisingly sycophantic and exceedingly hyperbolic, with many members acting as if Kenyatta was the Lord and Savior Jesus. While it is likely such sentiments were not meant to be taken literally, they are worth taking seriously in terms of how they structured the terms of acceptable debate, or the language of common knowledge. Consider the statement from the Assistant Minister for Natural Resources A. Ochwada:

48 Ministerial Statements: Appreciation of Massive Demonstration of Loyalty to the Presi-

dent. (June 29–July 2, 1971). Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 49 TNA: FCO 31/856. 50 Ministerial Statements: Appreciation of Massive Demonstration of Loyalty to the President. (June 29–July 2, 1971). Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session.

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I have said time and again in this House and outside it that even Jesus himself said that, ‘not all those people who call me by my name do actually believe in my name’ … I know that some of us who keep on shouting things, telling Mzee [Kenyatta] that they like him and he is the only leader for them, mean it very little.51

Ochwada here invoked the example of Jesus to underscore the danger of treachery from within. If even Jesus himself could be surrounded by false disciples, then so too could their founding father Kenyatta. Member E. T. Mwamunga continued with this Jesus analogy: We condemn them like God condemned Lucifer in heaven. He threw him down here and he has so many disciples around. We condemn this Lucifer. A coup d’etat failed in heaven; it has failed in Kenya and it will fail again because the people do not want coup d’etat … What did these plotters want? Just to be called Presidents?52

Mwamunga’s remarks prompted supportive cries from the Assembly (the Hansard noted an interjection from a fellow member: “They never will be!”). Perhaps unsurprisingly, the morally charged and sermon-like statements were the ones that solicited the loudest cheers – statements such as, “we do not want political sinners among us,” repeated references to the “corrupt” cause of the plotters, and “any violation of the Constitution is to be condemned … as absolutely immoral.”53 Such sentiment became even more explicit when the Assistant Minister of State from the President’s Office Munyi proclaimed: We are told by the Almighty God, Sir, that there is Satan here on earth. We are told, further, that Satan and God used to live in heaven together but one day Satan conspired to overthrow God, and the Almighty God—we are told by the Bible, Sir, and I am not the one who wrote it—threw him down here on earth. Mr. Speaker, Sir, the big Satan is here on earth, especially on the continent of Africa, and is trying to divide us. 54

What are we to make of Munyi’s sermonizing? The overt biblical references not only underscored religious devotion to Kenyatta, but also 51 Ministerial Statements: Appreciation of Massive Demonstration of Loyalty to the Presi-

dent. (June 29–July 2, 1971). Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 52 Ministerial Statements: Appreciation of Massive Demonstration of Loyalty to the President. (June 29–July 2, 1971). Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 53 Ministerial Statements: Appreciation of Massive Demonstration of Loyalty to the President. (June 29–July 2, 1971). Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session. 54 Ministerial Statements: Appreciation of Massive Demonstration of Loyalty to the President. (June 29–July 2, 1971). Kenya National Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session.

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limited the terms of debate because to come out against Kenyatta would be tantamount to defying God. In other words, to overthrow the government would be not only seditious, but diabolical. Trial Postscript Rituals of devotion to Kenyatta and KANU that were performed both in and out of court helped propound the narrative that obedience to power had been restored. Importantly, this narrative was formalized in two ways: through the court’s conviction of the accused as well as parliament’s vote of confidence in the President. In the years that followed, KANU opted to formalize many more demonstrations of power, including the decision in July 4, 1974, at the KANU Governing Council conference to declare Kenyatta “Life President,” a position that he retained until his death by natural causes in 1978.

3.4 alternative explanations Thus far, I have argued that the 1971 sedition trial helped judicialize the process of punishment and contributed to efforts to restore obedience to Kenyatta’s authority. The evidence provided in Section 3.2 suggests that autocrats like Kenyatta strategically used courts as a means to maintain law and order during times of crisis. But could these outcomes be due to alternative explanations? Two factors are worth considering: external pressure and colonial legacies in the legal sector. 3.4.1 External Pressure One alternative explanation is that postcolonial leaders faced explicit, external pressure from former colonizers to work within the courts. British influence was particularly significant in postcolonial Kenya: By the time of the sedition trial, Kenya was only five years from independence and still intimately involved with their former colonizer. This was in part due to the fact that the Kenyan government was still struggling to replace British officials with indigenous Kenyans in various state sectors, a process known more broadly as “Africanization.” Basic staffing challenges posed a monumental hurdle for the fledgling nation-state and progress was remarkably slow, such that British expatriates continued to occupy various administrative positions across the postcolonial state. In fact, British influence permeated nearly every branch of the Kenyan government well after the formal end of colonial rule.

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Against this backdrop, the decision to judicialize punishment might not have originated with Kenyatta, but rather from British officials who were still accustomed to directing the internal political affairs of their ex-colonial subjects. Or, it might have been the case that the Kenyan government had autonomously decided to hold a trial, but their intended audience was the British government, not the indigenous elite. Appealing to British audiences might have been especially beneficial given Kenya’s dependence on the former for economic and military assistance. This explanation also seems plausible considering that a common law proceeding would have resonated more strongly with British audiences, especially since Kenyan courtrooms continued to bear the trappings of colonial rule, even down to the accoutrements of presiding jurists.55 While the British had an undeniably significant influence on postcolonial Kenyan affairs, a variety of archival evidence suggests that the British did not play a decisive role in deciding to prosecute the 1971 sedition case. For example, in conversations between Kenyan attorney general Njonjo and the British high commissioner, it is evident that Njonjo was relaying information about the state’s intentions in the trial rather than British officers dictating instructions to the Kenyan-led prosecution. These conversations further reveal that Njonjo was not willing to pursue all of the plotters, which would have been preferred by the British, out of Njonjo’s concern of domestic dynamics, particularly among ruling party and military ranks. In a summary of one of these meetings, the British High Commissioner noted that “Njonjo agreed with me that whereas international opinion had on the whole reacted favourably, from Kenya’s point of view, to the recent prosecutions, a public admission that the Chief of the Defense Services was implicated in a treasonable plot might be a sharp shock to [local] opinion.”56 This suggests that at least from the prosecution’s standpoint, internal politics more so than external pressures shaped the conduct of the trial. In addition, if the intent of the Kenyans was to appeal directly to British audiences, then their efforts ultimately backfired: British officials were utterly unimpressed by the conduct of the Kenyan court, which they believed failed to live up to British standards. Evidence of such

55 The English horsehair wigs adorned by Kenyan jurists would not be removed from the

official uniform until decades later.

56 TNA: FCO 31/856.

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opinion comes again from the British archives, specifically documents of the proceedings compiled by locally stationed British officials. One British officer summarized the state of affairs as follow: “The Court proceedings … have not escaped criticism and many observers have looked askance at the prejudicial way in which, whilst their cases were sub judice, the plotters were openly condemned by almost everyone from the President downwards. It is also no secret that the integrity and reputation of the presiding Asian magistrate have been severely impugned by the widespread suspicion that the Government had put pressure upon him.”57

Notice here that the British seemed particularly offended by ongoing commentary of the trial among Kenyan politicians, which the British cast as prejudicial. British reports of the unfolding courtroom drama were replete with such observations, which prompted one British official to conclude that the “reputations of several senior Ministers, particularly the Vice-President and to a lesser degree the Attorney-General, may have been damaged by their emotional reactions and subsequent witch-hunting tactics over a plot which was in fact probably never a serious threat to the Government.”58 British commentary on the sedition case was also infused with racist overtones, sentiments which intensified as the trial unfolded. As one officer casually opined toward the conclusion of the trial, “an interesting characteristic of the case, which I feel probably stems from deep-rooted African tribal psychology, was the abject way in which the conspirators, when apprehended and confronted by their crimes, all broke down, confessed everything, begged forgiveness and in an almost childlike way.”59 Or, as summarized by another officer: “A very African process.”60 Such assessments not only revealed the white supremacist thinking of many British officials, but also hinted that they believed indigenous Kenyans were ill-equipped to operate the English common law courts as they were meant to be used. In fact, because the trial was conducted in a forum that was familiar to British audiences, it was actually easier for British officials to cast these proceedings as perversions of “normal” justice – normal by English standards – and hence less credible narratives of crime and punishment.

57 TNA: FCO 31/856. 60 TNA: FCO 31/856.

58 TNA: FCO 31/856.

59 TNA: FCO 31/856.

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What are we to make of these assessments? Taken together, they suggest that British officials were generally disappointed by the conduct of the trial and thus unpersuaded by their conclusions. While this does not entirely dismiss the possibility that the Kenyan government was attempting to court British opinion in their favor, that British officials were so critical of these proceedings makes this explanation less compelling. Indeed, considering all of the interventions at play – the trial, the rallies, the National Assembly speeches – it seems more plausible that the sedition case of 1971 was a mostly local affair directed by and designed for local agents. 3.4.2 Colonial Holdovers Another alternative explanation is that judicial strategies of repression in Anglophone Africa were historically contingent – that is, the legacy of colonial norms and practices in the legal sector that were carried over to the postcolonial period. On this note, the Kenyan government was not unique in deciding to uphold the English common law framework after independence. Most former British colonies followed suit by working within rather than around these colonial holdovers – institutions which had originally been installed to subjugate the African population and stymie democratic dissent.61 In fact, many future African heads of state had firsthand experience as victims of the colonial criminal justice system, including Kenyatta himself who been convicted in a colonial court during the infamous Mau Mau Rebellion in the years leading up to independence.62 In many respects, these colonial holdovers provided a readymade tool kit of legal weapons that had for decades been used to curtail democratic dissent under the auspices of the law.63 While it is true that postcolonial governments inherited many institutions from their former colonizers, it is also true that these regimes deliberately dismantled institutions that stood in the way of their autocratic

61 Chanock (1985); Mamdani (1996). 62 Similar incidents happened elsewhere in British Africa. Hastings Banda of Malawi and

Julius Nyerere of Tanzania had both been charged with crimes against the state for their anti-imperial mobilization. Nyerere’s case went to trial in 1958 where he was tried for libel in relation to the publication of a party newspaper that was critical of colonial rule. See TNA: FCO 141/17913: Tanganyika: criminal case number 2207 of 1958, Regina versus Julius Kambarage Nyerere (alleged libel against District Commissioners in ‘Sauti ya Tanu’); verbatim record. 63 Coldham (2000).

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designs.64 This was especially true of independence constitutions that had been drafted by colonial and indigenous leaders in the period leading up to decolonization. In their original form, these documents were meant to enshrine multi-party democracy and parliamentary governance in the postcolonial era. Within a decade of declaring independence, however, most had been amended to centralize power under a presidential republic and a one-party dictatorship.65 These institutions were even less resilient in regimes that succumbed to military coups, where rule of law was superseded by rule by decree.66 Importantly, at a time when postcolonial autocrats were literally rewriting the rules of political order, colonial-era courts were still being used to persecute political enemies. In fact, as British officials were beginning to question the degree of their involvement in postcolonial regimes, leaders in Kenya and other newly independent nation-states were making direct entreaties to the British government for their assistance in strengthening their common law legacies (issues I revisit in Chapter 6). Repressive laws of the colonial period were also being renewed in African National Assemblies. In Kenya, for example, the British-era Preventive Detention Act and Societies Ordinance were reintroduced by Kenyan legislators after independence. While these examples are suggestive, it is logical to presume that if the leaders of African nation-states were able to selectively invoke colonial era laws and regulations to their liking, then they would have had similar discretion to redesign the courts, if deemed necessary.

3.5 beyond kenya This chapter has focused on Kenya – specifically the events leading up to and immediately following the 1971 sedition trial – in order to flesh out the mechanisms by which a judicial ritual helped restore obedience to autocratic authority. But to what extent can insights derived from Kenya’s experience be generalized to other autocratic contexts? Many features of the Kenyan case resonate with other one-party dictatorships in postcolonial Africa, including the fusion of party and state,

64 Kasfir (1974).

65 Kilson (1963); Mueller (1972).

66 Young (2004).

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the emergence of a cult of personality around the leaders of independence, and the reliance on colonial law and courts as instruments of postcolonial repression. More broadly, the Kenya case illustrates how autocrats confront challenges to their survival that are common to all autocratic regimes. All autocrats must contend with threats from both above and below, though the degree to which insiders and outsiders are deemed viable challengers can vary by context. In Chapter 4, I examine these patterns of punishment more systematically, using quantitative analysis to understand who was more likely to go to trial in the autocratic regimes of postcolonial Africa.

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4 Who Goes to Trial?

Even a handful of madmen, or an individual, can constitute a danger to the security of the State. To put such potential dangers … in cold storage should be the duty of every Government worth its salt … The law does not provide for sensational court hearings, but it does provide for the release of such persons when the State thinks they no longer threaten its security. — The Nationalist, “Justified Act,” August 9, 19651

The central theory of the book is that courts provide a valuable platform for autocrats to institutionalize the process of punishment and restore obedience to their rule. An observable implication of this argument is that, all else equal, elite insiders should be more likely to go to trial than elite outsiders because of the different threats each poses to regime cohesion. Recall that insider rebellion is more proximate to the autocrat, covert, and insidious; outsider rebellion is more peripheral to the autocrat, overt, and conspicuous. In the former case, autocrats may be uncertain about the locus and scope of the conspiracy, which is why a political trial can help restore confidence in their rule. In the latter case, autocrats can more easily turn the regime against an overt rival, such that outsider threats can be more directly dealt with by extrajudicial repression. To test whether these implications hold, in this chapter I examine repression patterns in the autocratic regimes of postcolonial Africa 1 The Nationalist was a Tanzanian-owned English Daily Newspaper. The National Archives

(TNA): DO 213/103: Internal political situation in Tanzania.

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where threats to autocratic survival emerged from both insider and outsider elites. In most repression research, the starting point of analysis is the act of repression itself. That is, the focus is on violent events perpetrated by state actors in service of some broader political goal.2 Using an events-based approach enables scholars to categorize a range of repressive behaviors into discrete categories of violence that can help illustrate patterns of repression across time and space.3 However, acts of state violence are not always visible, especially in autocratic contexts where reporting of such incidents may be censored. Repression research has thus tended to focus on more overt acts of violence – such as arrests, detentions, deportations, or executions – which can be directly observed or else triangulated from official and unofficial sources.4 By contrast, my starting point in this chapter is not the act of repression itself, but rather the threat which precedes it. Focusing on threats first and repression second enables me to evaluate whether individuals who were implicated in similar conspiracies received different punishments based on their elite status. I specifically examine conspiracies concerning plots to overthrow the government. The main advantage of analyzing such plots is their visibility. In particular, whereas autocratic regimes generally lack transparency such that elite conflicts are often fought and resolved behind closed doors, coup plots are conspicuous grabs for power. The discovery of such plots thus drags elite conflict out into the open, shedding light onto struggles for control that are fundamental to autocratic survival. These struggles were often so high stakes that even a failed plot could provoke a repressive response by the regime, both judicial and extrajudicial. Focusing on coup plots, my analysis spans former British colonies in Africa that followed convergent trajectories to authoritarianism in the mid-twentieth century and encountered similar threats to autocratic survival. The sample includes Ghana, Sierra Leone, Kenya, Malawi, Tanzania, Uganda, and Zambia during the postcolonial period, which dates from independence in the mid-twentieth century until the early 1990s.

2 Davenport (2007). 3 Developing distinct categories of repression can be useful for ensuring inter-coder con-

sistency, though Fariss (2014, 2019) finds that such measures may still obscure changing standards of repression over time. 4 Davenport (2007); Fariss (2014, 2019); Hafner-Burton (2005); Hill and Jones (2014).

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Important for my analysis, though we typically think of coups as an insider elite phenomenon, outsider elites were also sometimes implicated in these postcolonial conspiracies.5 In fact, it was common for African autocrats to accuse opposition leaders of collaborating with either local or foreign militaries in attempts to subvert the regime or even assassinate the head of state. Focusing on coup plots in this context thus enables me to evaluate whether different types of elite actors were repressed in systematically different ways. While the postcolonial period provides a unique window into the struggles for autocratic survival in historical context, data from this period can be challenging to collect. The data featured in this chapter was primarily derived from shadow archives, or historical deposits located outside of the country under study. While shadow archives should be interpreted with caution, these records provide a rare window into processes that are otherwise difficult to observe. In particular, intelligence reports, white papers, memoranda, private communications, newspapers, gazettes, legislative debates, and other political ephemera from the postcolonial period help paint a picture of threats and repression in postcolonial polities.6 I use such material in an attempt to triangulate information on coup plots and repression outcomes across a variety of African regimes. As I detail in this chapter, I find statistical evidence that suspected coup plotters were repressed differently depending on their elite status: Insiders were significantly more likely to be taken to trial than outsiders. I further find that while most insiders were convicted, many later had their sentences commuted by the president. I conclude the chapter with a discussion of these trends and their implications for strategies of repression more generally.

4.1 threats to autocratic survival: coup plots To test whether repression strategy varies by type of threat, I focus on coup plots: instances of conspired but unsuccessful overthrow of executive authority. Focusing on coup plots is analytically productive for several reasons. First, as mentioned earlier, coup plots represent relatively conspicuous incidents of elite conflict. Second, coups became the modal

5 Peyton et al. (2020). 6 The British National Archives, the Senate House Library, the Endangered Archives

Programme at the British Library, the ProQuest Historical Newspapers Database, Gazettes.Africa, Law.Africa, the Kenyan Gazette, and the Kenya National Assembly Official Record produced by Hansard.

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form of regime change in postcolonial Africa and thus an omnipresent threat for autocrats in a variety of regime-types.7 Regardless of whether such events occurred in a one-party state or a military junta, the premise of the conspiracy was essentially the same: An individual or group of individuals had connived to subvert the incumbent. Third, the revelation of coup plots nearly always provoked a repressive response by the state.8 Tracking such conflicts thus provides a way to test whether different types of plot resulted in different repression outcomes. Fourth, though coup plots are often characterized as an elite insider phenomenon, in the postcolonial African case, coup plots could plausibly be staged by elite outsiders. Particularly alarming to autocrats were those outsider elites who had connections to military leaders, whether domestic or foreign, and could thus be complicit in viable conspiracies to overturn the regime. What specifically qualifies as a coup plot? Plots are unsuccessful coups, meaning they are by definition unrealized events. A variety of threatening activities fall under this broad category: Some conspiracies never materialize beyond the planning stages, whereas others advance to literal boots on the ground. Scholars often distinguish these events by whether overt actions have taken place, the logic being that more overt plots represent more serious threats.9 Drawing distinctions between more or less overt plots provides clarity on the range of conspiracies that fall short of successful coups. Yet, this approach tends to conflate a plot’s visibility with its severity. As Kebschull (1994) explains, focusing too much on overt events risks categorizing a “serious, well-developed plan that was suppressed just before action began as ‘only a plot,’ while a superficial, shotgun attempt by a few, poorly organized officers who fired a few shots in the air is recorded as an

7 Young (2004). 8 Lachapelle (2020). 9 McGowan (2003) defines “attempted coups” as actions involving either “(i) [executive]

displacements lasting less than seven days, (ii) attempted assassinations and arrests of some members of the existing regime, or (iii) the mobilisation of the military, police, or security forces explicitly aimed at a government take-over.” McGowan’s treatment of “plots” is less specific, referring to any form of conspiracy that is foiled before overt action can occur. Other scholars have adopted a similar approach. The Cline Center’s Coup D’etat Project, which draws on five existing datasets, defines “attempted coups” as efforts that are unsuccessful in removing the chief executive, though they are less specific than McGowan about the length of the effort and the number of agents involved. Like McGowan’s notion of “plots,” they define “conspiracies” as coup efforts that are discovered and disrupted in the planning stages, meaning the conspirators never began to implement their plans. The Cline Center’s Coup D’Etat Project actually defines ten categories of successful coups, as opposed to two categories of unsuccessful coups. See Peyton et al. (2020).

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unsuccessful coup” (p. 567). In short, context matters. Considering how often coups were successful in the postcolonial period, it is reasonable to assume that the discovery of a plot at any stage could be perceived as a serious threat to autocratic survival. Furthermore, while the discovery of coup plots can provide insight into the conflicts that beset autocratic regimes, it is important to acknowledge what these events do and do not reveal. Plots are often announced after they have been allegedly foiled, meaning the veracity of these conspiracies may only be as good as the autocrat’s word. And autocrats have compelling reasons to lie: Plots offer distraction from other political or economic crises, and may even be used as justification for government incompetence or mismanagement, which autocrats may ascribe to political sabotage.10 Even so, a fabricated plot still serves as a “political datum” for understanding sources of autocratic insecurity.11 This is because in the postcolonial African case, the key revelation of a plot was not that intrigue was bound to occur, but whom the state had implicated in the conspiracy. The announcement of failed plots provided pretext to round up individuals whom were deemed threatening to regime survival. Furthermore, regardless of whether the plot was fake, the repression that followed was real. Framed in this optic, even an invented coup plot reveals whom the regime deems threatening and the logic by which these individuals are repressed. I thus adopt an inclusive definition of coup plots to consist of any plans or actions undertaken by elite insiders or outsiders with the intent of overthrowing the executive by unconstitutional means. In the next section, I explain how I collected data for these events for postcolonial African cases.

4.2 data on coup plots in postcolonial africa Data on coup plots is typically derived from newspaper and secondary sources.12 Many datasets rely almost entirely on the reporting of foreign, 10 Kebschull (1994). 11 McGowan (2003) writes: “Although there is no reliable means by which the researcher

or analyst can clearly distinguish between bona fide plots and manufactured allegations, the “reported plot” can in any case be viewed as a political datum, indicative of military involvement in politics and political elite instability.” 12 McGowan draws on several different repositories, including LexisNexis, the New York Times, the Africa Research Bulletin, the Africa Contemporary Record, Keesing’s Contemporary Archives, the Foreign Broadcast Information Service, and numerous academic

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primarily Western media outlets and specifically the New York Times.13 While such sources tend to provide more general details about conflicts in the Global South, this foreign news-based approach can be extremely useful for assembling cross-national, time series data.14 In particular, data collection over wide regions and long histories is more efficient when drawing from the records of a single, albeit sizable, international media organization. While a great deal of attention in the foreign press is paid to the onset of conflict, considerably less coverage is devoted to its resolution. Foreign attention tends to fall at a precipitous rate when conflicts are drawn out over weeks, months, or years, making it challenging to track longrun repression outcomes linked to particular plots. Furthermore, Western media is unlikely to devote extensive coverage to individual plotters unless they are internationally renowned political figures. Indeed, beyond generic references to political or military elites, the names and political affiliations of suspected plotters is often omitted in the Western press. Relying on Western news sources can also lead to data collection efforts that are heavily biased toward overt conspiracies. In fact, some scholars have deliberately excluded covert plots from their analyses. Powell and Thyne (2011) write that they do not even attempt to document coup plots because “they are often too mundane to be picked up by large media sources” (p. 251). But to treat unreported events as trivial risks overlooking conspiracies that directly pertain to autocratic survival. Such plots may not be deemed salacious enough for international headlines, but this does not mean that these events are not worth examining. Furthermore, it reasons that autocrats would have reason to censor this type of information and thus prevent its publication by both the local and foreign press. To assume that non-reporting is a sign of the mundane is injudicious; The New York Times should not be the ultimate arbiter of relevancy, particularly with respect to the politics of the Global South.

sources. The Cline Center Coup D’Etat Project combines several existing databases that were manually compiled using news sources, though it also leverages machine learning to automatically process digital news content retrieved from the web. 13 The New York Times features into coup datasets compiled by McGowan, Cline, Powell, and Thyne. Note that Cline, Powell, and Thyne build upon existing datasets, most of which also use the New York Times. 14 For example, the Cline Center Project has relatively specific classifications for different coup events, though all are coded in binary terms – were rebels or students or military involved, did incumbent flee, and so on.

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To understand these challenges more concretely, consider two major data collection efforts: McGowan’s African Military Coups and the Cline Center Coup D’Etat Project. McGowan’s data focuses on successful and unsuccessful coups for 48 independent sub-Saharan African states for the 49-year period from 1955–2004. It is notable for its level of detail, including a roster of known or alleged participants for a given event and the sources from which the information was gathered.15 For an event to be included, it had to be reported in at least two independent sources, consisting of either foreign news media or secondary reports. While acknowledging the limitations of this “newsworthy” approach, the McGowan data represent one of the most comprehensive and oft-cited sources on African coups.16 The Cline Coup D’Etat Project, by contrast, is a more globally comprehensive undertaking to build an inventory of coups and coup-related events around the world.17 At present, it covers 165 countries in the post-WWII era, and includes a relatively fine-grained coding of twelve coup categories. Data sources include a combination of existing sources (many of which draw on the same news-centric methodology as McGowan) as well as data science techniques to identify information on coups from a digitized news archive created by the Social, Political and Economic Event Database (SPEED) project.18 Figure 4.1 shows the aggregated results of these efforts for the countries that I focus on in this study.19 What is immediately striking is the sparsity of both datasets: Very few coup plots were documented in either case.20 But perhaps even more remarkable is the fact that many of these data points do not even overlap. This issue is particularly acute for Malawi

15 Other details include information on the type of event, a qualitative description of the

event, and the apparent and reported causes of the event.

16 McGowan (2003). 17 Peyton et al. (2020). 18 SPEED is another Cline Center initiative that includes a diverse set of news sources for

every country in the world; it includes tens of millions of articles and is updated daily.

19 The Cline dataset was downloaded directly from: https://databank.illinois.edu/datasets/

IDB-5672473. For the McGowan analysis, I produced a version of the dataset featured in McGowan (2003) from scratch by following the data collection process meticulously outlined in the main text and appendix. The appendix in particular provided a useful template for how coup events were recorded and verified, as well as which historical newspapers were used in the documentation process. 20 Both McGowan and Cline collected data on unsuccessful coups, which McGowan differentiates as attempted coups and plots, whereas Cline differentiates as attempted coups and conspiracies.

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figure 4.1. Unsuccessful coups: Data from McGowan and Cline Center Both the McGowan and Cline Center data are based on newspaper and secondary sources. Data for the countries under study (Ghana, Kenya, Malawi, Sierra Leone, Tanzania, Uganda, and Zambia) are presented here to highlight coverage of each dataset over the time frame of interest: the postcolonial era, that is, independence in the mid-twentieth century until the early 1990s, which was the formal end of one-party rule for many postcolonial regimes in Africa.

where only a single episode was documented in either dataset – but each dataset references a separate event!21 Such data provide an incomplete (and sometimes inconsistent) picture of coup threats over time. However, in highlighting these inconsistencies, my objective is not to dismiss the value of news-based approaches. Data derived from news media can paint a picture of coup plots in summary

21 Source material may play a role here: McGowan’s approach uncovers a “plot” dated

January 25, 1977 pertaining to an ex-cabinet minister and ex-police officer who were accused of having conspired to overthrow the government by force. Cline refers to a “coup attempt” in 1965 but provides no details other than labeling it as a failed “rebel coup.” My own records suggest that the Cline datum refers to an infamous rebellion involving Henry Chipembere, ex-cabinet minister who staged an armed insurrection against the Banda regime that ultimately failed.

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strokes, which can be useful for analyzing diverse regions and complex histories. Moreover, this type of information provided an invaluable topography of plots and conspiracies that served as a foundation for my own data collection efforts. But it is important to recognize that such sources often fall short when it comes to providing a detailed portrait of specific plots, including the challengers involved and how they were ultimately repressed. The bias toward “newsworthy” events further amplifies these oversights, resulting in potentially incomplete understandings of repression strategies in autocratic regimes. For these reasons, I turn to an alternative source of data on coup plots: shadow archives. 4.2.1 Tracking Coup Plots in “Shadow Archives” Shadow archives are collections of historical documents that are deposited outside of the country of interest.22 For reasons discussed in Chapter 1, shadow archives located in Britain provide a particularly useful vantage point through which to track coup threats in former British colonies. Recall that the main concern with African archives is that postcolonial records are often missing or destroyed: sometimes deliberately, sometimes due to a lack of resources to properly preserve archival material. These data challenges are particularly acute with respect to the judiciary. Even among African countries that published annual law reports, these publications were primarily intended for local jurists and legal practitioners to use in their day-to-day work, and as such only covered a subset of politically non-sensitive cases that were deemed useful for general jurisprudence. Political trials were notably omitted from the record and thus not documented in systematic fashion. However, data on these phenomena can be gleaned from a variety of official and unofficial sources that were maintained by the British government. I specifically turned to records compiled by the Foreign and Commonwealth Office (FCO) and Overseas Development Office (OD) housed at the British National Archives. In FCO and OD dossiers, British officials kept meticulous records on the politics of their ex-colonies and were particularly sensitive to perceived threats to regime survival. Any whisper of conspiracy could thus generate an incredible amount of textual data as British officials attempted to confirm details of ongoing events.

22 Allman (2013); Skinner (2019).

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These records include intelligence reports, security briefings, private correspondences with African officials, local African newspapers, local government records, and other political ephemera. Certain documents remained classified for decades after their creation and only recently became available to the general public. In fact, I submitted my own Freedom of Information Access requests to the British government in order to gain access to some of the records used in this project. The release of this material provides fresh insight into conflicts over power and autocratic survival across the continent as they unfolded in real time. Before visiting the archives, I followed McGowan and others’ approach by building a dataset of plots that were featured in the popular press.23 This provided an initial mapping of coup plots and a useful vantage point from which to understand the breadth of coup conspiracies within my countries of interest. Once at the archives, I retrieved British dossiers produced by the FCO and OD offices that were collated by country and year (e.g. “Malawi, Political Internal, 1964”). Sifting through annual dossiers helped ensure that my coverage of relevant country-years was relatively systematic, though in some cases I was able to draw on topic-specific dossiers.24 My original plan was actually to use the archives to flesh out the details of conspiracies covered by the popular press. But I soon realized after poring over this trove of material that there were a considerable number of covert conspiracies documented in these reports that were not covered by local nor international news sources. The archives thus provided an unexpected windfall of intelligence on plots and their suspected conspirators. While I conducted the bulk of my research at the British National Archives, I also gained valuable insight on postcolonial politics by visiting the British Library where I accessed records of the Endangered Archives Programme (EAP), a collaborative effort between the British Library and local partners around the world to preserve indigenous records from the Global South. I also benefited from sources found at the Senate House Library Archives at the University College of London, which contained documents pertaining to political prisoners being detained in ex-British Africa. Additional information was obtained from the Gazettes.Africa repository, which stores digitized African gazettes dating back to the 23 ProQuest Historical Newspapers. 24 For example, “Plot to Assassinate Nkrumah” and “Sierra Leone Treason Trials.”

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colonial era. From these varied sources, I leveraged more than 7,000 primary documents pertaining to coup threats and repression outcomes in postcolonial Africa. For the sake of clarity, I focused on allegations that led to the targeting of specific individuals as opposed to amorphous claims of conspiracy that never resulted in concrete charges.25 This data collection strategy yielded 168 plots (2,563 plotters) in Ghana, Kenya, Malawi, Sierra Leone, Tanzania, Uganda, and Zambia from independence through the early 1990s. Figure 4.2 shows these trends distributed by country and year. Compared to Figure 4.1, we see that the data derived from the archives documents a greater number of plots across all countries in the sample. Notice now that Malawi has several more observations than before (including both of the events identified by McGowan and Cline, respectively). A few trends are worth mentioning here. First, while all postcolonial regimes experienced coup plots, only some actually succumbed to coups. Were regimes that came to power via force more likely to face future plots? As Figure 4.3 shows, both coup and non-coup regimes experienced the greatest number of plots immediately after seizing power. However, coup regimes tended to be much more unstable than their non-coup counterparts: the average tenure of a coup regime was a brief 1.04 years; the average tenure of a non-coup regime was 13.3 years. In the latter case, coup plots were more concentrated during the first decade of power and began to decline over the ensuing decades. This suggests that regimes that lasted in power longer encountered fewer threats over time. Second, the size of plots (i.e., the number of plotters implicated in a given conspiracy) also varied. The distribution of plot size by country can be seen in Figure 4.4, which illustrates that the vast majority of plots in all countries consisted of just a few individuals, though in a handful of cases, several hundred were implicated. These larger plots might be taken as indicators of plot severity, the logic being that more plotters meant a greater likelihood of success. Yet, as others have noted, inferring plot severity from plot size is not straightforward, particularly when dealing with actors of different status, background, and resources.26 Controlling for plot size without acknowledging insider–outsider status thus only tells part of the story; my analysis attempts to account for both.

25 African leaders sometimes blamed foreign powers, particularly in the West, of plotting

insurrection against them.

26 Kebschull (1994).

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figure 4.2. Unsuccessful coups: Data collected by author from shadow archives Data for the countries under study (Ghana, Kenya, Malawi, Sierra Leone, Tanzania, Uganda, and Zambia) were primarily sourced from Shadow Archives, including the British National Archives and the British Library. Entries are shown for the postcolonial era: independence in the mid-twentieth century until the early 1990s when these countries began to liberalize. While the bulk of these data points can be traced back to documents compiled by British intelligence, wherever possible, I attempted to corroborate these reports with other political ephemera such as historical newspapers or secondary sources.

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figure 4.3. Distribution of coup plots by age of regime Figure shows distribution of coup plots by age of regime for all countries in the sample, including Ghana, Kenya, Malawi, Sierra Leone, Tanzania, Uganda, and Zambia for the postcolonial period (independence-1994). Non-coup regimes are constitutional autocracies; coup regimes are military juntas that seized power through unconstitutional means.

4.2.2 Identifying Individual Plotters Who were the plotters implicated in these conspiracies? Data from shadow archives enabled me to triangulate the biographical details of individuals who were linked with specific episodes. Particularly informative were the intelligence reports, African gazettes, and government white papers contained in British dossiers, which often included the name, party status, and rank of individual plotters. I used this biographical information to classify individuals as elite insiders (members of the ruling party and military) and elite outsiders (members of the opposition). Recall that ruling party and military agents are considered elite insiders because their loyalty is deemed vital for autocratic survival.27 Opposition leaders, by contrast, are considered elite outsiders because the autocrat can function without their active support.28 27 Svolik (2012); Young (2004, 2012); Roessler (2011).

28 Bhasin and Gandhi (2013).

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figure 4.4. Plot size by country This figure shows the distribution of plot size for each country from the year of independence until 1994, wherein plot size is determined by the number of individuals implicated in a given conspiracy. The figure zooms in on the left side of the distribution to illustrate how the majority of plots comprised fewer than twenty individuals. In a few cases, however, there were plots comprising approximately 400 individuals. In the Appendix, I show that excluding these larger plots does not change the main findings.

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I collected information on members of the military whenever they were implicated in these conspiracies. As coercive agents, military officers represented a more violent threat to autocrats than party elites. But like members of the ruling party, military officers were deemed essential to regime survival; that is, their loyalty could prove decisive in the success or failure of insider rebellion. This was true for both military and civilian regimes alike.29 However, in some cases, categorizing a plotter’s insider–outsider status was not so straightforward. Party switching was common and unpredictable as different organizations vied for national control, especially in the immediate independence period when many ruling party organizations merged or dissolved when they were unseated by the opposition.30 In fact, many popular opposition parties were actually founded by former ruling party elites – groups which were soon flanked by other ex-members of the ruling party rank-and-file. Other opposition parties had always operated on the periphery but still posed sizable threats to the incumbent in national elections, in some instances prompting defection from the ruling group. Sorting plotters into insider–outsider categories thus required drawing relatively arbitrary cut points in time. Considering the extreme party fluidity and unstable partisanship of the independence period, it is not immediately obvious whether a plotter’s previous party affiliation factored into how they were subsequently repressed. Would an individual who had crossed the floor be treated differently than one who had never defected? Framed another way, was a ruling party defector more likely to be repressed like an agent of the ruling party or the opposition? To address this ambiguity, wherever possible, I recorded party membership at the moment an individual was implicated in a coup plot as well as any previous affiliation the individual had with the opposing party. 4.2.3 Tracking Repression Outcomes Documenting repression outcomes required tracking the fate of accused plotters over the weeks, months, and even years following the initial reporting of a failed plot. Some cases proved easier to track than others.

29 In fact, my data reveals that a greater proportion of military agents were implicated in

coup plots in civilian regimes rather than military ones.

30 Riedl (2014).

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figure 4.5. Documents from the British National Archives on treason trials in Sierra Leone Source: TNA: FCO 65/496.

For example, challengers that went to trial were typically tracked by both British officials and the local press. These records not only provided a relatively detailed accounting of how trial proceedings unfolded, but also helped document key dates in the prosecution timeline. Figure 4.5 shows a typical case from Sierra Leone, wherein the British not only identified the names and political backgrounds of individuals who were indicted by the government, but continued to follow the proceedings of the court and provide regular updates to the Home Office as the case unfolded.31 This fastidious documentation of long-run outcomes was extremely useful for my data collection purposes (and far more informative than conventional newspaper coverage). For cases that went to trial, I recorded the verdict in the case: whether the defendant was convicted or acquitted. Documenting this information helped build a relatively unique, cross-national dataset of judicial

31 These records furthermore reveal how long it took for some judicial proceedings to

conclude: The document on the left describes the start of a new treason trial in May 1969; the document on the right summarizes the verdicts in said case, delivered in April 1970.

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decision-making in autocratic regimes, which provides me with considerable analytical leverage over existing data on judicial outcomes in the region.32 However, tracking extrajudicial outcomes proved more challenging. This is because individuals who never went to trial typically received less media coverage. In fact, a typical news headline might declare that “hundreds or thousands” of individuals had been detained, but would not go into detail about who these individuals actually were or why they had been rounded up by the state. In these cases, the archives again proved more fruitful. British High Commissioners distributed to the central office whatever local intelligence on these incidents had been collected in real-time, including special gazettes issued by African governments that announced when and where specific individuals had been detained.33 Consider Figure 4.6, which depicts a facsimile of several Ugandan Gazette clippings listing the names of individuals and the dates they were summarily detained without trial, along with a cover letter by the British High Commissioner explaining the circumstances under which these individuals were arrested.34 These records, alongside other contemporaneous documents describing the circumstances of these detentions, helped paint a more complete picture of threats and repression strategies. From these data, I identified four categories of repression that were inflicted in the wake of failed coups: detention, deportation, execution, and trial. Figure 4.7 illustrates the distribution of outcomes across the whole sample. The vast majority of individuals were either prosecuted or detained; deportations and executions were much less frequently deployed against political rivals. Given the challenges of documenting extrajudicial repression, some of these findings should be interpreted with caution. In particular, while trials, deportations, and instances of exile are generally made public, arbitrary detentions and executions are likely underreported.

32 Linzer and Staton (2015) observe that generally speaking, “there is nothing close to a

representative sample of judicial decisions for all countries, much less over time and for many courts in a state’s system” (p. 226). This is why many cross-national measures of judicial behavior draw on expert assessments or proxy indicators of judicial procedures. 33 Additional corroborating detail was gleaned from human rights reports produced by Amnesty International and the US State Department. 34 The National Archives: FCO 31/712: “Political Detentions in Uganda.”

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figure 4.6. Documents from the British National Archives on political detainees in Uganda Source: TNA: FCO 31/712.

figure 4.7. Distribution of repression tactics Instances of repression aggregated across the entire sample (Ghana, Malawi, Kenya, Sierra Leone, Tanzania, Uganda, Zambia) over the postcolonial era (1957–1994).

4.2.4 The Treatment of Civilian and Military Plotters Before proceeding with the main analysis, it is useful to discuss the methods of prosecution that might befall civilian and military defendants. For civilian defendants, political trials typically occurred in common law

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courts before a panel of formally trained jurists. For military defendants, while the default option was to prosecute officers in military tribunals, several military elites were actually prosecuted in common law courts alongside civilian defendants.35 However, even in cases where military elites were tried by court martial, the separation between military and civilian justice was not always as sharp as is often believed. In some jurisdictions, common law jurists were appointed to serve on military panels, ostensibly to offer counsel to presiding military officers. For example, the Ghana Armed Forces Act 1962 stipulated that courts martial include a judge advocate general appointed by the president to advise on any question of law or procedure. These rulings could be appealed to a Court Martial Appeal Court, comprising judges of the superior court of judicature and any other common law professionals appointed by the Chief Justice. Uganda had similar measures in place to provide judicial oversight over military tribunal decisions, as detailed in the Economic Crimes Tribunal Decree 1975, which stated that a military “tribunal shall have a legal advisor who shall be a Magistrate Grade I or other legal practitioner, of not less than two years’ standing, appointed by the Chief Justice after consultation with the AttorneyGeneral.” While the influence of formal jurists in these cases remains debatable, the mere presence of a common law judge on a military tribunal arguably served similar symbolic purposes to their presence in common law courts: to confer ceremonial authority to the executors of legal punishment. To further underscore the similarities between political trials in civilian and military courts, many military proceedings were actually open to the general public such that local and international representatives could observe the proceedings first-hand; some were even filmed as newsreels and distributed for mainstream consumption. Consider the 1967 court martial conducted by the Ghanaian National Liberation Council, the military junta that had overthrown President Kwame Nkrumah the year before. Film footage of trial showed the layout of the military

35 See Chapter 5.

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tribunal, including a panel of five presiding military officers and one common law jurist donning his formal robes. The climax of the trial was the conviction and sentencing of three pro-Nkrumah coup plotters who each received death sentences for their crimes. Upon receiving their sentence, which was read aloud by the military head of the tribunal, the defendants were escorted out of the courtroom in shackles while an audience of civilians and military officers watched in silence.36 Such performances reveal how military tribunals subscribed to much of the same pomp and circumstance found as common law courts, which suggests that there was meaningful overlap between the judicial rituals of civilian and military justice in postcolonial Africa.

4.3 testing who goes to trial To determine whether challenger type is systematically related to repression strategy, I begin with a simple bivariate analysis using individual-level data where the dependent variable is coded as trial or detention without trial. Is there evidence to support the claim that insiders were more likely than outsiders to face a judicial strategy of repression? Figure 4.8 suggests so. The figure shows that among individuals who were brought to trial, the number of insiders (1,084) far outweighed the number of outsiders (247). The reverse was true with regards to detention without trial, which seems to have been primarily reserved for outsiders (1,117) and rarely used against insiders (115). This outcome lends credibility to the hypothesis that insiders were more likely than outsiders to receive a judicial strategy. Main Results To control for other relevant factors that might determine repression strategy, I estimate the following functional form using OLS: Yi = β0 + β1 threat_typei + βXi + i

36 Several of these proceedings can be accessed at the Reuters News Archive, including

footage of the verdict and sentencing of defendants accused of attempting to overthrow the National Liberation Council in 1967, titled “Sentencing of 3 Pro-Nkrumah Coup Plotters to Death | Military Tribunal | May 1967.”

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figure 4.8. Bivariate distribution of challenger-type and repression strategy Insiders include members of the ruling party and military; outsiders include members of the opposition. Outcomes aggregated across all countries and years in the sample: Ghana, Malawi, Kenya, Sierra Leone, Tanzania, Uganda, Zambia; 1957–1994.

where Yi is a binary indicator for whether individual i was brought to trial, threat_typei is a factor variable for i’s insider–outsider status, Xi is a vector of controls,37 and  is the error term. Standard errors are clustered by coup plot event. Figure 4.9 presents estimates for the model with threat-type defined as ruling party, military, or opposition. The results reveal that both ruling party and military agents were significantly more likely to face prosecution than members of the opposition. The results are particularly strong for the military, where the difference between a military agent and a member of the opposition going to trial is nearly 70 percent. The difference between a member of the ruling party and a member of the opposition going to trial is approximately 30 percent. This pattern is in line with theoretical expectations considering the vital role that military agents often played in the success or failure of coup plots in postcolonial Africa.

37 Including country and year fixed effects, coup plot size, whether the regime came to

power via coup, and the number of years a regime had been in power.

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figure 4.9. Likelihood of going to trial Estimates from the OLS regression of repression strategy (trial or no trial) on challengertype (military or ruling party). Reference level is Opposition, where party status was coded at the moment a plot was discovered. Estimates include controls for country, year, regime years in power, and whether the regime came to power via coup.

For autocrats, maintaining active support of the military was essential for overcoming such threats. Whenever there was dissension in the ranks, a trial of rebellious officers by courts martial could serve to reinforce cohesion of the military. In fact, the logic of conventional military justice is akin to the logic of a judicial strategy of repression, with the primary objective being to maintain discipline and morale of an otherwise divided organization.38 Maintaining this cohesion was important, not just for military leaders but also members of the rank and file. Defectors versus Never Defectors When I differentiate civilian threats by party history, the main results still hold. Figure 4.10 shows the coefficient estimates of the OLS model with an alternate party coding: actors who had always been members of the ruling party (never defector), actors who had defected from the ruling party (defector), and actors who had never previously held membership in

38 As Westmoreland (1971) observes, “the administration of military justice serves the same

purpose and function as the administration of any system of justice, whether civilian or military – the preservation of good order in the community.”

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figure 4.10. Likelihood of going to trial Defector is a former member of the ruling party who since defected to the opposition; Never Defector is a steadfast member of the ruling party. Reference level is Original Opposition (not previously a member of the ruling party). Estimates include controls for country, year, regime years in power, and whether the regime came to power via coup.

the ruling party (original opposition). Note that original opposition here serves as the reference level. The results show that the difference between never defectors and original opposition going to trial is approximately 20 percent. But perhaps more strikingly, defectors were significantly less likely to go to trial, facing lower rates of prosecution than even members of the original opposition. The estimated difference between defectors and original opposition is −40%. That party defectors were the least likely to go to trial makes sense when we consider the purpose that such proceedings are designed to serve. If a judicial strategy of repression is designed to dissuade insiders from defecting, this strategy is largely wasted on agents who have already defected. Furthermore, such actors have effectively demonstrated their disloyalty to autocrats twice: first by defecting from the ruling party, then by attempting to overthrow it. Would an autocrat want an agent of proven disloyalty to rejoin the ruling group? In this case, it seems more straightforward to dispose of the rival through summary, extrajudicial tactics. To illustrate these dynamics more concretely, it is useful to consider how ruling party defections were often perceived as acts of personal

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betrayal. The sense of treachery was particularly acute whenever the defector was the second-in-command, as was the case in Zambia and Kenya when Vice Presidents Simon Kapwepwe and Oginga Odinga left their respective posts to found parties in opposition to the ruling group. Ruling party leaders in both countries portrayed the founding of such organizations “not merely as illegitimate, but traitorous.”39 Such thinking underpinned a constellation of draconian laws designed to criminalize opposition as immoral and justify the detention of opposition members without trial. In the Kenyan case, the fact that Odinga and other opposition leaders had once been members of the Kenya African National Union (KANU) was immaterial; as soon as they crossed the floor, they had shown their “true colors” and thus could not be trusted in future.40 MPs sometimes helped perpetuate these ideas by castigating party defectors on the floor of parliament. One MP used a marital analogy to underscore the sense of personal betrayal: I am a KANU member, a wedded member, not an eloped member … ‘Any girl that has eloped can never be called lady.’ I am a lady because I was wedded to KANU. The others are not ladies … they will not be wedded to you; they will be wedded to KPU.41

In these ways, party insiders differentiated between steadfast members of the ruling group and its defectors, the latter of whom had proven that they could not be trusted. Of course, as discussed in Chapter Three, such statements were not necessarily genuine expressions of private beliefs. But they were nonetheless indicative of a culture of condemnation against government critics, one routinely performed and perpetuated by members of the ruling party rank-and-file. And members of the opposition, which had openly defected from the ruling group, presented an easy target.

4.4 trial and posttrial outcomes The preceding analysis offers evidence that insiders were more likely to go to trial than outsiders. But what of trial outcomes – were insiders 39 Kilson (1963), p. 266. 40 Shikuku, Martin. (June 7, 1966). Motion – The President’s Madaraka Day Speech. Kenya

National Assembly Official Record. Hansard, Volume 5, 1st Parliament, 2nd Session.

41 Shikuku, Martin. (June 7, 1966). Motion – The President’s Madaraka Day Speech. Kenya

National Assembly Official Record. Hansard, Volume 5, 1st Parliament, 2nd Session.

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4 Who Goes to Trial? table 4.1. Guilty verdicts by country Country Ghana Kenya Malawi Sierra Leone Tanzania Uganda Zambia

Conviction rate 0.90 0.98 0.86 0.86 0.81 0.67 0.46

Conviction rate aggregated across the postcolonial era (independence through early 1990s) in each country.

convicted for their alleged crimes against the state? Recall from Chapter 3 that a guilty verdict is a crucial component of the trial narrative because a conviction provides the clear-cut conclusion to the simple story of challenger guilt. It thus reasons that conviction rates should have been relatively high. Table 4.1 reports the proportion of insiders who were convicted for crimes against the state (aggregated across all years for each country in the sample). In general, theoretical expectations hold: Conviction rates for most countries ranged between 80% and 98%, on average, suggesting that courts fulfilled their duties when tasked to repress. However, this was not the case everywhere, as in Zambia and Uganda, where the conviction rate ranged between 46% and 67%, on average. Varying rates of conviction suggest that trial outcomes in postcolonial Africa were not necessarily predetermined, or at least not to the same degree as the show trials of the Soviet Union and Nazi Germany. However, the uneven performance of courts across the sample also suggests that African autocrats confronted different challenges of securing a cooperative judiciary. I turn to these issues directly in Chapter 6 where I unpack the dynamics of executive-judicial cooperation in a variety of postcolonial regimes. And what of posttrial outcomes? For cases that did end in conviction, what ultimately happened to the convicted challenger? Given the challenges of tracking such information for thousands of individual defendants, particularly in the weeks, months, and years following the conclusion of a given case, I chose to focus on a specific type of outcome that was reasonably well documented: whether a sentence was commuted by the

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figure 4.11. Sentencing patterns Post-trial outcomes for insiders who were sentenced to face either death or time in prison.

president. Presidents had the authority to commute sentences, whether by substituting prison for capital punishment or merely reducing the length of the prison sentence. These commutations were sometimes announced in the popular press but were more often featured in African government gazettes and other intelligence reports produced by the British. Aggregate trends are presented in Figure 4.11, which shows posttrial commutations for insiders who were sentenced to face either death or time in prison. Notably, few insiders were actually sentenced to death: Only 203 received the death penalty, 164 (81%) of which were actually executed. This is in contrast to the 760 insiders who were sentenced to serve time in prison.42 But of the insiders who handed prison sentences, the commutation rate is striking: 559 (74%) were released early under orders of the president.

42 Given the challenges of tracking long-run repression outcomes in the archives, I was

unable to track the posttrial fate of 117 insiders across the entire sample, approximately 10 percent of all observations.

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Why did presidents have a change of heart, especially when considering that these defendants had been convicted of plotting to subvert the regime? There are a few possible interpretations. One explanation is that autocrats commute sentences to prevent backlash from other ruling elites. If posttrial punishments are deemed too harsh, insiders may feel urgency to oust the autocrat lest they are taken to trial next. A commuted sentence, however, allays such concerns by suggesting to other insiders that the autocrat is more concerned about restoring discipline than inflicting vengeance. On this note, recall that the goal of a judicial strategy of repression is to use the proceedings of a trial to generate common knowledge regarding a shared threat, which should dissuade insiders from defecting to the challenger on trial. Ideally, these ideas should be achieved by the time the judge delivers a final verdict. That is, if trials are effective in restoring regime cohesion, whatever punishment befalls the challenger after the trial is secondary to what already happened in court. Commutations may thus be an indicator that trials had achieved their purpose such that posttrial punishments are unnecessary. Another interpretation is that commutations were attempts by autocrats to signal leniency. In fact, it was common for autocrats to declare general amnesties on national holidays such as independence day, whereupon hundreds or thousands of political prisoners would suddenly be released. Such gestures demonstrated an autocrat’s beneficence, perhaps to curry favor with international audiences that were critical of human rights abuses. However, records from the British archives are particularly telling in this regard, providing consistent, uncensored evidence that British officials cared little for human rights abuses in Anglophone Africa, despite often paying lip service to groups such as Amnesty International. In fact, British officials would privately comment amongst themselves that it was better to not interfere with local human rights violations lest they be accused of infringing on the sovereignty of their former colony. As one official remarked, “Any criticisms such as that made by Amnesty International … are fiercely resented [by African governments] and are ascribed to British or white machinations.”43 British officials thus

43 TNA: FCO 65/832.

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concluded that unless a British citizen was the actual victim, it was not their business to interfere in African affairs.

4.5 conclusion This chapter provides quantitative evidence that strategies of repression in postcolonial Africa adhered to the theoretical predictions set forth in Chapter 2: Insiders are more likely to be brought prosecuted for crimes against the state, whereas outsiders are more likely to be summarily detained without trial. Chapter 5 builds upon these findings using qualitative evidence, specifically historical case studies, to better understand why judicial and extrajudicial strategies were particularly useful for the emerging autocrats of the early independence period.

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appendix 4a 4A.1 Tables: Who Goes to Trial table 4a.1. Repression strategy by challenger type: Ruling party, military, opposition Dependent Variable: (1) Ruling Party

0.350∗∗∗ (0.120)

Military Country-Year FE Plot Size Coup Regime Regime Years Observations R2

0.685∗∗∗

Challenger Goes to Trial (2) (3) 0.295∗∗ (0.127) 0.679∗∗∗

0.293∗∗

(4)

(0.119)

0.293∗∗ (0.119) 0.692∗∗∗ (0.072)

(0.078)

(0.076)

0.692∗∗∗ (0.073)

Yes No No No 2,563 0.600

Yes Yes No No 2,563 0.608

Yes Yes Yes No 2,563 0.622

Yes Yes Yes Yes 2,563 0.622

Notes: ∗ p < 0.1; ∗∗ p < 0.05; ∗∗∗ p < 0.01 Standard errors are clustered at the coup plot level. Baseline observation is member of the opposition.

table 4a.2. Repression strategy by challenger type: Defectors vs. never defectors Dependent Variable: (1) Ruling Party Party Defector Country-Year FE Plot Size Coup Regime Regime Years Observations R2

0.269∗

Challenger Goes to Trial (2) (3)

(4)

(0.148)

0.157 (0.138)

0.133 (0.150)

0.144 (0.152)

−0.333∗∗ (0.132)

−0.411∗∗∗ (0.115)

−0.442∗∗∗ (0.137)

−0.431∗∗∗ (0.136)

Yes No No No 1,492 0.390

Yes Yes No No 1,492 0.489

Yes Yes Yes No 1,492 0.497

Yes Yes Yes Yes 1,492 0.501

Notes: ∗ p < 0.1; ∗∗ p < 0.05; ∗∗∗ p < 0.01 Standard errors are clustered at the coup plot level. Baseline observation is member of the opposition.

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table 4a.3. Repression strategy by challenger type: Excluding large outlier plots Dependent Variable: (1) Ruling Party Military Country-Year FE Plot Size Coup Regime Regime Years Observations R2

0.350∗∗∗

Challenger Goes to Trial (2) (3) 0.220∗

(4)

(0.121)

(0.127)

0.180 (0.122)

0.182 (0.124)

0.623∗∗∗ (0.087)

0.544∗∗∗ (0.090)

0.560∗∗∗ (0.080)

0.559∗∗∗ (0.080)

Yes No No No 1,627 0.408

Yes Yes No No 1,627 0.449

Yes Yes Yes No 1,627 0.476

Notes: ∗ p < 0.1; ∗∗ p < 0.05; ∗∗∗ p < 0.01 Standard errors are clustered at the coup plot level. Excludes plots involving more than 400 plotters in single plot event. Baseline observation is member of the opposition.

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Yes Yes Yes Yes 1,627 0.477

5 Pathways of Punishment

Should we wait till the State has lost its security before we set in motion the long and cumbersome machinery of criminal law or shall we ensure the personal liberty of each one of our citizens by eternal vigilance? —The Nationalist, “Justified Act,” August 9, 19651 The essence of the offence lies in the preparation or the endeavor to overthrow the government or alter the law or the policies of the government. … But once the final objective is accomplished the question of whether or not the act was unlawful falls to the ground. It is therefore no defense for a person charged to say that the existing government which he failed to overthrow also came to power by unconstitutional means. —Austin Amissah, Criminal Procedure in Ghana, 1982

Chapters 3 and 4 have addressed the first and second pillars of the theory, respectively: In Chapter 3, I examined the mechanisms of a judicial ritual and its effect on regime cohesion; in Chapter 4, I provided evidence that, in expectation, autocrats distinguish between insider and outsider elites when deciding who will be subjected to this repressive ritual. This chapter builds upon and synthesizes these findings by turning to other examples of persecution and punishment in postcolonial regimes. My aim here is to show how the politics of the early independence period, which were fundamentally shaped by the struggle for national control, provide an

1 The Nationalist was a Tanzanian-owned English Daily Newspaper. The National Archives

(TNA): DO 213/103: Internal political situation in Tanzania.

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illuminating backdrop to understand the interplay between contests of power and pathways of punishment. For tractability’s sake, my comparison focuses on a relatively narrow but significant time window: 1961–1971. At the start of this interval, many African nations had just emerged into a new postcolonial reality and were only beginning to establish their sovereignty on the global stage.2 Leaders in these contexts faced a daunting challenge: indigenous movements that had previously been united by the common goal of independence now faced the Herculean task of consolidating diverse peoples and competing interests as a single, unified nation. This tension, famously described by Jackson and Rosberg (1982) as de jure without de facto sovereignty, set the stage for conflicts in the years to come. My analysis centers upon the constitutional one-party regimes and military juntas of Tanzania and Sierra Leone, countries that were characterized by complex and uneven trajectories to dictatorship in the latter half of the twentieth century. From a bird’s eye view, the commonalities between Sierra Leone and Tanzania during the early years of postcolonial rule were manifold. Both had declared independence from Britain in constitutions co-drafted with the latter – documents that were intended to pave the way for representative government in the form of multiparty democracy. Yet, almost immediately after the transition to self-rule, both began to consolidate power and repress democratic dissent through those same constitutional devices. By the 1970s, both the Sierra Leonean and Tanzanian constitutions had been rewritten to legally enshrine one-party rule.3 However, despite their shared origins and similar endpoints, the road toward dictatorship in Sierra Leone and Tanzania diverged in crucial ways. In Sierra Leone, a rapid sequence of coups and countercoups in the late 1960s ushered in a volatile period of national politics. Tanzania never experienced crises of this magnitude, though it did confront a potentially alarming military threat almost immediately after independence. Perhaps most consequential for Tanzania was the military-backed revolution in Zanzibar, an event which demonstrated the dangers of unchecked opposition and an unconstrained military, the aftereffects of which would have critical consequences for the formation of the Tanzanian state. 2 For example, Sierra Leone declared its independence from Britain in 1961, and Tanzania

was founded in 1964 following the union of Tanganyika and Zanzibar a few months prior.

3 A summary of major events in both countries during the 1961–1971 period can be seen

in Figures 5.1 and 5.2.

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Before turning to the main analysis, it is worth dwelling on the significance of this era – not only for Tanzania and Sierra Leone, but for the autocratic experience more broadly. The early years of independence were marked by deep skepticism about the future of these nascent nations. This point deserves emphasis because the weight of uncertainty confronting independence regimes is often lost in retrospect. In the Tanzanian case, it is tempting to summarize President Julius Nyerere’s 21-year uninterrupted reign as remarkably stable (at least far more stable than those of his overthrown neighbors), but this conclusion only comes in hindsight: Nyerere’s early days in office were plagued by sizable crises and insecurities, including the very real threat of military insurrection. Sierra Leone meanwhile emerged from British rule under somewhat more calm circumstances, though its future stability was still far from certain. As one British official privately observed on the first anniversary of Sierra Leone’s independence, “there are still few indications of the future course the country will take. The first year has seen no dramatic developments, and in many ways has been spent tasting the delights of independence rather than shouldering its burdens. The testing time is yet to come.”4 These tests would come soon enough: By the close of the decade, the independence regime would suffer escalating crises of confidence culminating in a chaotic series of coups and countercoups, turmoil that ultimately ushered in a new ruling party and the establishment of one-party constitutional dictatorship. In this shifting environment, one of the most pressing concerns confronting the governments of Tanzania and Sierra Leone was whether a relatively untested regime would be able to consolidate control and overcome threats to power on the national stage. While political challengers are to be expected whenever new regimes come to power, they were especially daunting for leaders who faced the additional, largely unprecedented task of establishing postcolonial states. Understanding these tensions in historical context is critical toward explaining how autocrats attempt to centralize control, whom they perceive as viable threats to their agenda, and how they try to overcome obstacles to autocratic survival. In the remainder of this chapter, I delve into these postcolonial histories by turning to primary documents from the era and a variety of secondary sources in order to better understand the logic of judicial and extrajudicial strategies of repression in context.

4 TNA: PREM 11/3534.

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5.1 the case of tanzania Tanzania emerged from British colonial rule in the early 1960s and in the years that followed, a relatively stable constitutional autocracy was established under the leadership of President Julius Nyerere. In fact, whereas military coups became the modal method of regime change elsewhere, particularly in Sierra Leone, Nyerere himself was never overthrown. After nearly 21 years of uninterrupted rule, Nyerere voluntarily stepped down and was replaced by his designated successor in a peaceful, constitutional transfer of power. Yet, despite this remarkably stable postcolonial trajectory, Tanzania was actually a nation born of not one but two crises in two neighboring countries: mainland Tanganyika and the offshore island of Zanzibar. The drama began on January 12, 1964, on Zanzibar when the sultanate was overthrown and replaced by the Socialist People’s Republic of Zanzibar and Pemba. Eight days later, the Tanganyika army staged a revolt against the one-party government of President Julius Nyerere and the Tanganyika African National Union (TANU), a maneuver deemed severe enough that Nyerere made a personal request to the British government to help restore order in the region. Shortly after the British intervention, the military solution was followed by a political one: the union of Tanganyika and Zanzibar as a single nation, the United Republic of Tanzania, under the supreme authority of President Nyerere. After the union in April 1964, Zanzibar continued to operate as a semiautonomous government with its own president and party, the Afro-Shirazi Party; TANU and ASP would later merge as the Chama cha Mapinduzi Revolutionary Party in 1977. It would be easy to dismiss the crises of 1964 as a momentary setback for an otherwise stable autocratic regime. And many have done so, concluding that the rebellion of the Tanganyikan Air Rifles was nothing more than the failed efforts of disgruntled, undisciplined officers rather than a calculated conspiracy of military men with political ambition.5 But to fully appreciate the ramifications of these events on Tanzania’s postcolonial trajectory, we must consider how the crises were perceived in real time. In particular, that the Tanganyikan Army rebellion occurred only a week after the successful military-led revolution in Zanzibar should

5 Much of the debate surrounding this event centers around the reported grievances of the

rebellious officers, which was that “Africanization” of the military was proceeding too slowly.

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be taken seriously. Regardless of the military officers’ intent, given what had just transpired in Zanzibar, the Tanganyika leadership would have likely perceived the rebellion as a potential coup. How the regime chose to respond to this conflict is thus indicative of the logic and challenges confronting emerging autocrats with uncertain futures. In what follows, I first summarize the general state of affairs at independence when Tanganyika and Zanzibar were still separate nations. As each country emerged from under British rule, they confronted similar challenges of postcolonial state-building that resulted in contests for control of the national government. These events provide the backdrop for understanding the creation of the Tanzania nation-state. 5.1.1 Party Politics in Postcolonial Tanganyika When Tanganyika gained independence from Britain in late 1961, Nyerere became its first indigenous head of state. One year later, Tanganyika became a constitutional republic with Nyerere as president and TANU as the ruling party. Nyerere and TANU subsequently began a concerted effort to establish a one-party system, an issue which took center stage at the January 1963 TANU Annual Conference. While the meeting itself was private, its proceedings provided the basis for a pamphlet authored by President Nyerere on the need for national unity. As Nyerere argued: Where there is one party, and that party is identified with the nation as a whole, the foundations of democracy are firmer than they can ever be where you have two or more parties, each representing only a section of the community.6

In making his case, Nyerere claimed that multiparty democracy as practiced in the West was culturally inappropriate for the African context: “The European and American parties came into being as the result of existing social and economic divisions … Our own parties had a very different origin. They were not formed to challenge any ruling group of our own people; they were formed to challenge the foreigners who ruled over us.”7

That is, to allow the unfettered organization of opposition parties, as had been done in Europe and America, would be antithetical to the aims of African nation-building: “We built up [the ruling party] as a national movement to rid ourselves of their colonialism. A Tanganyikan who

6 Nyerere (1967).

7 Nyerere (1967).

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helped the imperialists was regarded as a traitor to his country, not as a believer in two-party democracy!”8 As articulated in these passages, Nyerere’s objective was to fuse party and state as a single entity. Key to effectuating this one-party plan was making party membership open to all citizens. As Nyerere explained, “no party which limits its membership to a clique can ever free itself from fear of overthrow by those it had excluded. It must be constantly on the watch for signs of opposition and must smother ‘dangerous’ ideas before they have time to spread.”9 In other words, opposition players had to be incorporated, co-opted, or otherwise subsumed under the ruling party banner. While espousing grand ideals of inclusivity at the conference, Nyerere and the TANU leadership were also putting into motion a variety of repressive measures to ensure one-party dominance. Among the most explicit efforts was the 1962 Preventive Detention Act. Similar to public security orders from the colonial era, the Preventive Detention Act stipulated that the president had absolute discretion to determine whether a person was deemed to be dangerous to peace and good order or was acting in a manner prejudicial to the defense of the nation or security of the state. The law further stipulated that President Nyerere could determine that detention was necessary to prevent an individual from engaging in subversive behaviors. In short, individuals could be detained in the absence of an actual crime. From 1962 until 1985, no judicial mechanism existed to challenge the legality of detention under the Preventive Detention Act, meaning Nyerere effectively had carte blanche to detain his enemies without trial. The Preventive Detention Act was routinely used to demobilize opposition leaders and government critics. Much of the opposition consisted of small parties divided by particular socioeconomic or cultural interests, including the African National Congress (ANC), founded by an ex-member of TANU,10 and the Peoples’ Democratic Party (PDP), led by Christopher Kasanga Tumbo, a prominent labor activist and fierce critic of Nyerere.11 Tumbo was actually jailed shortly after he referred

8 Nyerere (1967). 9 Nyerere (1967). 10 Zuberi Mtemvu, former press secretary of TANU, founded ANC after disagreement over

the racial composition of the Tanzanian government. ANC was anti-multiracial. See Peter (1997). 11 PDP leader Christopher Kasanga Tumbo was a minister of parliament and leader of the national labor movement the Tanganyika Federation of Labour (TFL). Other smaller parties that operated in the early years of independence included the Peoples’ Convention

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to the Preventive Detention Act as “a declaration of a state of emergency on the peaceful people of Tanganyika.”12 Nyerere professed that such detentions were not meant as retaliation against legitimate democratic dissent, but rather as deserved punishment against political traitors. In addition to facing threats of arbitrary arrest, opposition parties were also denied the right to register or even hold public meetings.13 Laws banning opposition mobilization helped ensure TANU’s domination at the ballot box by sidelining the opposition during key periods of electoral mobilization.14 The task of nation-building in postcolonial Tanganyika was thus depicted by the ruling group as a harmonious process of unification among diverse societal groups and partisan interests. But Nyerere’s allinclusive rhetoric masked a sinister reality of heavy-handed repression wherein the creation of so-called one-party democracy involved considerable violence against the opposition. 5.1.2 The Origins of Tanzania: Revolution and Rebellion In January 1964, less than two years after the establishment of Tanganyika’s presidential republic, two successive crises would irrevocably alter the configuration of the postcolonial state. These events were notably only eight days apart; the Zanzibar Revolution began on January 12, 1964, and the mutiny staged by the first battalion of the Tanganyikan Air Rifles began on January 20, 1964. The proposed solution to these crises was to centralize control: Tanganyika and Zanzibar were united as a single nation, Tanzania, to be governed by the one-party regime of the Tanzanian (formerly Tanganyikan) African National Union (TANU). 5.1.3 The 1964 Military Rebellion In regard to the Tanganyikan rebellion, British archives are particularly revealing due to the fact that British military forces were directly involved in suppressing it. Because of their extensive involvement in this affair,

Party (PCP) led by Samson Mshala, the Nationalist Enterprise Party (NEP) led by Hussein Yahaya, and the All Muslim Nationalist Union of Tanganyika (AMNUT). The PCP and NEP later joined forces as the African Independence Movement (AIM). See Peter (1997). 12 Peter (1997). 13 Peter (1997). 14 During the multiparty era, TANU enjoyed an overwhelming majority at the ballot box, garnering more than 98% of the popular vote in the preindependence and immediate postindependence elections.

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British officers were preoccupied with developing an accurate assessment of local events in real time to ensure that they were dealing with relevant actors and defusing the immediate sources of conflict. This record reveals that, contrary to post hoc, secondary assessments, the situation in Tanganyika was considerably ambiguous as it was still unfolding. Indeed, the archives reveal a far more muddled story of conflict than what has been otherwise reported, one characterized by questionable loyalties and exigent threats to regime cohesion. With regards to the 1964 rebellion, certain details were indisputable: On the morning of January 20 at 1:35 a.m., the alarm was sounded at Colito Barracks when rank-and-file members the first battalion of the Tanganyika Air Rifles arrested their senior officers.15 The mutineers then proceeded to Dar es Salaam where they surrounded the State House (the home and office of the president) and occupied the police station, the airfield, as well as the cable and wireless office.16 Facing little reistance, over the next seven days the military revolt spread to barracks in Tabora and Nachingwea, followed shortly thereafter by outbreaks of mob violence and looting among civilians. Attempts to negotiate with the military officers – by President Nyerere, Vice President Rashidi Kawawa, and Minster for Defense and External Affairs Oscar Kambona, separately – proved unsuccessful. After several days of political standstill, on January 25, following a direct appeal from President Nyerere for their assistance, British commandos from the HMS Centaur landed and effectively quelled the rebellion, quickly restoring order across the nation.17 The aforementioned details provide a general sketch of the army rebellion and its successful containment. However, what remained less clear at the time were the contours of the conspiracy, including the extent to which the Tanganyikan army had underlying political objectives or whether other nonmilitary actors were complicit in its execution. Though the public narrative centered around the military’s demands for wage increases, as Bienen (1970) observes, “no revolt of military force would be without major political implications” (p. 366). On this matter, British

15 Many leading positions in the Tanganyika military were still occupied by British officers,

which was one of the sources of discontent among the rank-and-file. TNA: DO 185/46: Mutiny of the Tanganyika Rifles. 16 Part of the reason that the military officers were able to seize these sites so quickly was because approximately 300 Tanganyikan police officers were still on dispatch to Zanzibar (where they were dealing with the aftermath of the revolution staged only a week before). TNA: DO 185/46: Mutiny of the Tanganyika Air Rifles. 17 TNA: DO 226/10: Tanganyika mutiny: British intervention.

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intelligence reveals a deep skepticism about the apolitical narrative that was being propounded in the popular press by Nyerere and other TANU leaders. In fact, private correspondence among British agents reveal a theory that the Minister of Defense Kambona was actually complicit in the conspiracy, perhaps involved in a plot to overthrow Nyerere.18 This was in large part because Kambona had been the first representative of the government to approach the military while both President Nyerere and Vice President Kawawa’s whereabouts were still unknown, even to Kambona.19 Lacking explicit instruction or approval from his political superiors, under whose authority was Kambon acting? Was Kambona attempting to persuade the officers to return to the barracks, or was he actually leveraging the situation to seize power for himself? The theory that Kambona was complicit in the rebellion gained traction when the identities of the suspected ringleaders were revealed: Almost all were considered to be “Kambona men.”20 Prior to the revolt, Kambona had developed a close, informal relationship with several military officers, which the British suspected had ultimately contributed to the lack of army discipline. As one British official observed, Kambona “made himself too accessible to all ranks who wished to see him without going through the proper channels. He has had privates and NCOs in his own house and has by-passed the officers in dealing with them.”21 Kambona’s casual approach was not only seen as detrimental for maintaining hierarchy and discipline within the armed forces, but also aroused suspicion that Kambona was cultivating personal ties with the military independently of Nyerere, feeding the notion that he had his own political ambitions. That the revolt had not been anticipated in the first place was also blamed on Kambona because he had recently replaced the Tanganyika Special Branch with the TANU Youth League, which was less of an intelligence gathering agency and more of an auxiliary wing of the ruling party. This was widely seen as a move that weakened the dissemination of accurate information within the regime that might have helped preempt military rebellion.22

18 TNA: DO 185/47. 19 TNA: DO 185/47. 20 Two of the ringleaders were captains who had been personally selected by Kambona to

lead the Tanganyika Air Rifles. TNA: DO 185/47.

21 TNA: DO 185/47. 22 Prior to Special Branch’s decimation, it had twice discovered sources of military discon-

tent that were reported to the party leadership and effectively defused before reaching the point of military. TNA: DO 185/47.

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Did Nyerere share in these suspicions? Summaries of meetings between British agents and Nyerere reveal that while he never pointed a finger directly at Kambona, he was openly disdainful of how Kambona had attempted to handle the mutineers on his own.23 Nyerere was also aware that Kambona’s loyalty had faltered in the past. Two years before, Kambona had been one of the few public dissenters when Nyerere proposed transforming Tanganyika into a one-party state. There was also sense of a growing rivalry between Kambona and Vice President Kawawa, tensions likely inflamed after Kambona interceded with the mutineers before either Nyerere or Kawawa were able to do so themselves. Nyerere’s calm, public demeanor was discordant with another unsettling reality brought to the surface by the army revolt: The military threat, as it were, appeared more selective to Nyerere than to the regime as a whole. Perhaps most alarmingly for regime elites, at the same time that Nyerere and Kawawa went into hiding, the bulk of the ruling party rank and file had remained at their posts, and actually appeared largely unperturbed. In fact, as uncertainty and confusion were unfolding around the capital, many TANU members adopted a “wait-and-see” attitude to let the conflict play itself out rather than become wrapped up in the drama themselves. As Bienen (1970) notes, whereas “the center was basically cut off from the rest of the country, both geographically and politically; … the TANU organizations outside Dar es Salaam could keep ruling” (p. 21). Threats to Regime Cohesion: Slipping Confidence in Nyerere? On January 25, the day of the British intervention, President Nyerere delivered a speech to the public attempting to justify his request for outside help. While he dismissively referred to the military revolt as some “trouble in Dar,” he also underscored the notion that “no popular Government can tolerate an army which disobeys its instructions.”24 He went on: “I decided there was only one thing which would be done; to disarm all the troops and punish the ringleader most severely. But obviously, it is not easy to disarm an army, one which is already intoxicated with the poison of disloyalty and disobedience.”25 Hence the need for outside intervention.

23 Nyerere told British officers that Kambona had been mistaken in trying to meet with the

mutineers on his own and then bring them to the State House to consult with Nyerere himself. See TNA: DO 185/47. 24 TNA: DO 185/47. 25 TNA: DO 185/47.

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But Nyerere’s press statements did little to restore confidence among his supporters and rumors that his grip was slipping proliferated in the months that followed. Members of parliament began to wonder in private whether the revolt was merely a mutiny as Nyerere had claimed, or was actually a subversive plot that nearly removed him from the political scene. One member of parliament conjectured that Nyerere’s public behavior was becoming increasingly erratic, and even suggested that perhaps he was under duress or drugged.26 It seemed that despite overcoming the revolt, its damaging legacy continued to haunt him. As Nyerere himself acknowledged, “it will take months and even years to erase form the mind of the world what they heard about the events this week.”27 5.1.4 Pathways of Punishment in Tanzania It is against this backdrop that we should consider how the regime chose to repress the actors involved in the so-called military mutiny of 1964. Three months after the first battalion invaded Dar – during which time the union of Tanganyika and Zanzibar was made official – the alleged ringleaders appeared before a court martial. I argue that the proceedings that followed adhered to the basic principles of a judicial strategy of repression: to make explicit the contours of the conspiracy, to simplify the messy reality of the conflict, and to underscore the futility of the defendants’ plans. A judicial ritual was thus performed to create common knowledge regarding a failed attempt to sow disorder and undermine the regime; in short, to reduce uncertainty against a selective threat. Restoring Regime Cohesion by Judicial Ritual On April 27, 1964, literally a day after Tanzania became a nation, nineteen members of the 1st Battalion Air Rifles appeared before a court martial in Dar es Salaam charged with mutiny involving both the use of violence and the threat of violence. Presiding over the court martial was Chief Justice Sir Ralph Windham, a British expatriate. The defendants were represented by outside counsel, an Australian barrister, whereas the state was represented by the Director of Public Prosecutions (DPP) Herbert Chitepo.28 The court martial was open to observers, including local

26 TNA: DO 185/47. 27 Bienen (1970). 28 Chitepo himself was an expatriate from Zimbabwe. For a more detailed discussion of

why expatriates were employed in African courts, see Chapter 4.

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and British officials, the latter of whom made detailed notes of these proceedings that I refer to below. With the actors assembled in court, the first component of the judicial ritual was for the state to lay down its own narrative of events. In his opening address, DPP Chitepo stated that the mutiny had been organized by a group called the “Army Night Freedom Fighters.” He stressed that the group had planned to ransom the whole of Tanganyika and bring the country to the brink of revolution, an offence that was, in his opinion, “verging on treason.”29 In other words, though the prosecution claimed that the defendants had acted in treasonous ways, the defendants would be charged with the lesser offence of mutiny. Why did the prosecution not simply charge the defendants with treason if they had exhibited treason-like behavior? The answer requires some conjecture. It might be the case that the state wished to castigate the defendants as dangerous criminals without making it appear that their offense had jeopardized the integrity of the new nation, one whose status had only just been achieved a few weeks prior. Furthermore, as argued in Chapters 2 and 3, semantics matter when conducting a judicial ritual, since the intent is to recast a narrative of conflict in regime-enhancing terms. Given Nyerere’s already-shaky reputation by this stage of the conflict, it seems reasonable to conclude that the prosecution did not want to imply that the newly instated president of Tanzania could not even command the loyalty of his own military.30 After laying down the charges, the next component of the ritual was the trial testimony, proceedings that propounded the narrative laid down in the prosecution’s opening remarks. This largely one-sided story required restricting who was allowed to testify and what testimony they were allowed to deliver, thereby limiting opportunities for counternarratives to arise. The prosecution’s witnesses were thus only asked to link specific officers with specific mutinous acts. The defense did not even call witnesses, relying entirely on the unsworn statements of the accused on the stand. In fact, other than the defendants’ own plea of “not guilty,” no defense was actually submitted to the court. What this meant was that at no point during the trial were the causes of the mutiny ever discussed;

29 TNA: DO 185/47. 30 Note that a similar tactic was used in Kenya in 1971 when the defendants who were

accused of attempting to overthrow and assassinate the president were charged with “sedition.”

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motives were imputed by the prosecution, but any further discovery that might have happened in court was not pursued. Considering the tightly controlled nature of these proceedings, it is worth noting who was conspicuously omitted from the witness list: Kambona. In fact, not only did Kambona not appear in court, he was not even in the country, having chosen to go overseas while the trial was in train. In a posttrial conversation with the British High Commissioner, the chief justice commented that while Kambona’s evidence could have strengthened the prosecution’s case and possibly led to harsher sentences against the accused, he suspected that Kambona may have removed himself from the proceedings so as to not draw attention to his inadequacies as a defense minister.31 It is perhaps telling that in May 1964, as the trial was still unfolding, Kambona’s defense portfolio was quietly handed over to Vice President Kawawa.32 The story thus delivered, the judicial ritual was brought to a close when the prosecution delivered its final address before the bench. DPP Chitepo summarized the state’s case by reiterating the seriousness of the offence, which he again emphasized was “tantamount to treason.”33 On July 14, 1964, following a quick deliberation, the chief justice delivered “guilty” verdicts against fourteen of the accused and sentenced them to terms of imprisonment ranging from fifteen years to five years; five of the accused were found “not guilty” and discharged.34 Interpreting the Proceedings of Court: Local and Foreign Perspectives From start to finish, the trial presented a simple narrative of conflict centered around the disloyalty and incompetence of mutinous officers. As summarized by one British official, “the trial, far from portraying a plot which had been carefully planned weeks in advance, produced nothing further back than a meeting of N.C.O.s and privates in the bush outside Colito Barracks the day before the mutiny.”35 But for whom was this narrative actually intended? Was the court martial designed to appeal to British officers who had initially restored order to the region, and perhaps now demanded justice? Or was it more targeted to domestic audiences whose confidence the regime needed to inspire?

31 TNA: DO 185/47. 34 TNA: DO 185/47.

32 TNA: DO 185/47. 35 TNA: DO 185/47.

33 TNA: DO 185/47.

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Accounts from British archives provide several insights on both British and local perspectives. Importantly, the idea for the court martial did not originate with the British. Instead, British officials noted that the decision to punish the mutineers through a judicial process lay squarely with Nyerere. This detail came to light during a meeting between the British defense adviser and Nyerere that occurred shortly after the revolt was quelled by British forces. In a summary report, the defense adviser relayed that Nyerere’s most exigent concern at the time was restoring discipline within the military: Nyerere, who was quiet and tense, said he had now come to conclusion that it was impossible to allow ringleader of revolt Sergeant Hingi, who had appointed himself Colonel in charge of First Battalion in Dar es Salaam, to get away with it … [Nyerere] realised [Hingi] was now harming morale of Army and achieving dangerous popularity with soldiers. Nyerere had therefore decided … that Hingi and other ringleaders should be rounded-up and dealt with.36

For Nyerere, it seems that the need for a court martial was driven more by domestic than international considerations, specifically his desire to restore control over a mutinous military; British appetite for such proceedings, to the extent that it even existed, would have been secondary. Another observation from the archives is that British officers held a generally poor view of the court martial proceedings. British reports repeatedly mention that the trial was “unsatisfying,” producing little new information about the event or why it occurred.37 They were particularly aggrieved by the witness testimony, mainly that British officers had not been called to testify. That the trial was conducted by expatriate jurists from the British Commonwealth (i.e. the English chief justice and the Australian defense counsel) did not improve British assessments. In fact, the use of expatriate jurists seemed to worsen their evaluation of the court martial overall, since it prompted them to draw direct comparisons between Tanzanian and British trial procedures, which notably differed.38 If the British were the intended audience of the trial, they were not impressed by its conduct and thus not necessarily convinced by its outcome. British opinion of the trial was also seeped in notions of white supremacy. By trivializing the events of January 1964, the trial narrative

36 TNA: DO 185/46. 37 TNA: DO 185/46. 38 In Chapter 5, I explain why African regimes preferred to rely on expatriate jurists.

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fuelled racist ideas among British officers that the lack of military discipline in the Tanganyikan Air Rifles was somehow emblematic of African culture. Reacting to the notion that the revolt was the work of a few disloyal and incompetent officers, one British officer remarked: The more I learn of Africa, the less do I regard this as incredible. With our sophisticated European background, we always imagine there must be deeper causes. But in Africa the bush fire can flare up suddenly without warning one day and on the next day is burned out completely.39

These overtly racist assessments are peppered throughout the archive reports, revealing the extent to which the trial utterly failed to resonate with British audiences who saw more flaws than merits in the court martial proceedings. But therein lies the rub: As I argued in Chapter 2, the point of a judicial ritual is not to divine truth or motive as is the case in a “normal” trial; it is to recast a story of conflict in terms more favorable to the regime; to dissuade supporters from dissenting or defecting; to restore confidence in the autocrat. And at least for audiences in Tanzania, particularly the military and ruling party elite, the trial seemed to have achieved these outcomes by providing a common narrative for insiders to mobilize behind. On this note, a variety of regime- and nation-building activities that unfolded while the trial was in train suggest that confidence in Nyerere had been at least party restored by the time the trial concluded. Consider Nyerere’s swift and summary actions to overhaul the military corps. After establishing an auxiliary coercive agency called the National Servicemen in February 1964, the government recruited members of the partisan TANU Youth League to set up local service stations around the country.40 Membership in the National Service also entailed membership in TANU, which was not costless considering that members had to pay annual party fees.41 In short, joining the service required making an overt (and financial) pledge to TANU. The fusion between party and military accelerated in June 1964 (while the trial was in train) when VP Kawawa announced that all military and police recruits were now eligible to join the ruling party.42 Previously, the military had been kept separate from politics and party membership was explicitly barred. But after the mutiny, efforts to fuse the military and ruling party were seen as important toward bringing coercive institutions

39 TNA: DO 185/46.

40 Bienen (1970).

41 Bienen (1970).

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42 Bienen (1970).

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under civilian control.43 Army officers were now expected to do party liaison work and to inculcate a sense of duty to Tanzanian development among their troops. The fact that members of the soldiers and police officers responded to this invitation en masse – enrolling in TANU as entire units – was a significant demonstration of support for Nyerere; perhaps not a demonstration of genuine loyalty, but at least signifying that Nyerere was able to command a sizable show of support. What of support for Nyerere among the ruling party elite? As the trial proceeded, criticism of Nyerere within the government appeared to have abated. His purported challenger Kambona had been effectively sidelined as early as May 1964. Following the loss of his defense portfolio, Kambona became increasingly marginalized within the party leadership, culminating in his eventual exile in 1967. Other signals of support for Nyerere were more overt and immediate. Just a few days after the mutiny was suppressed, Nyerere appointed a presidential commission to establish a de jure one-party state. The commission’s report, published in March 1965, recapitulated Nyerere’s arguments in favor of a so-called one-party democracy.44 After the October 1965 elections, one-party rule was ratified in the constitution. The election itself was an important referendum for Nyerere, where a vote for an MP was essentially a vote for or against Nyerere as president. And Nyerere received an incredible show of support, winning an overwhelming majority of votes case on both the mainland and Zanzibar.45 The 1970 Plot to Assassinate the President The court martial of 1964 was a learning experience for Nyerere and an important test for the new nation. Over the ensuing months, more military ringleaders were tried and convicted for their suspected roles in the 1964 rebellion. And in the years to come, as Nyerere consolidated control over the party and state, he would continue to pursue judicial strategies when necessary to repress selective threats amidst uncertain loyalties. Tanzania’s next major political trial occurred in 1970 following another crisis of confidence. Its execution was, in many respects, more

43 One of the most symbolic measures to fuse party and military was Nyerere’s decision to

grant an honorary commission in the People’s Defense Forces with a rank of colonel to S. J. Kitundu, the Coast Regional Commissioner. Kitundu was also appointed as Political Commissar of the Tanzania Defense Forces on November 6, 1964, which effectively gave a TANU official a high army position. See TNA: DO 185/46. 44 Tordoff (1967). 45 2,519,866 out of 2,612,225 votes cast (Bienen, 1970).

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refined than the first. The trial came about following growing insecurities within the regime elite that the now-exiled Kambona still enjoyed support within the ruling party. Efforts to identify the locus of insider rebellion led to numerous party purges and detentions without trial. In fact, many of these repressive measures were invoked following the 1967 Arusha Declaration, a watershed moment in Tanzanian politics when Nyerere and the TANU leadership officially laid down their socialist agenda. But such measures did more to fuel conspiracies than defuse them. For example, when nine members of parliament were expelled from TANU in October 1968 for opposing “the party line,” an anti-Nyerere (and proKambona) pamphlet called Debemoja subsequently argued that efforts to purge Nyerere’s critics would fail to derail opposition growing within the party ranks. The pamphlet based these conclusions on “frequent reports of a nationwide whispering campaign in support of the former Secretary General of TANU, Oscar Kambona.”46 Of course, such reporting should probably be seen as propaganda designed to discredit the party leadership. But attempts to clarify the source of the purported conspiracy on the floor of the Tanzanian National Assembly were in vain: When several speakers asked why their former colleagues had been expelled in October 1968, Vice President Kawawa attempted to defer such queries by putting them on the agenda the TANU National Conference in May 1969. These queries were never mentioned again.47 This backdrop informs the trial of 1970 against Kambona and his alleged supporters within TANU. According to the prosecution’s case, between March 1968 and October 1969, a group of eight people under Kambona’s direction were plotting to assassinate Nyerere and overtake the state by force. Because Kambona was by this time already in exile, the plot purportedly involved several local operatives within parliament and the armed forces.48 As in 1964, the case was plagued by uncertainty over the scope of the conspiracy, especially since the plot implicated persons who had personal

46 Bienen (1970). 47 TNA: FCO 31/682. 48 Among the accused were Grey Likungu Mataka, a news editor of the government-owned

Daily Nationalist; Bibi Titi Mohammed, president of the Union of Tanzanian Women; Michael Marshall Kamaliza, Minister of Labor; Eliya Dunstan Chipaka, a captain in Tanzanian Army; John Dunstan Chipaka, brother of Eliya; William Makbri Chacha, the military attache to China, and Alfred Phillip Millinga, an army lieutenant. See TNA: FCO 31/682.

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and familial ties within the ruling group.49 But this time the state was bolder, filing charges of treason against the accused. In fact, the TANUcontrolled legislature retroactively changed the law of treason before indicting the plotters, adding several categories of offence that directly corresponded to actions that had been undertaken by the accused.50 The law was also changed to allow for treasonable offences to be committed by people living outside of Tanzania, which was clearly an addendum specially made for Kambona.51 By tailoring the laws of treason to speak to the particulars of the plot, these legal amendments were obviously crafted around the specific conspirators on trial. This helped clarify the parameters of the conspiracy and furthermore generated expectations that the accused would ultimately be found guilty. From the outset of these proceedings, the regime thus set a stage rigged toward the conviction of the suspected ringleaders. The trial of 1970 adhered to the script of a judicial ritual, but with more pomp and circumstance than in 1964. Why? Perhaps because this time the trial was televised, meaning its theatrical proceedings were transmitted widely and viewed simultaneously by members of the general public. Local audiences were thus able to watch as justices clad in formal robes proceeded to the courthouse, flanked on either side by military officers standing at attention in an impressive display of state might and political order. Within the courthouse, viewers could then see the criminal defendants, looking both haggard and disheveled, penned in the dock.52 Broadcasting such scenes arguably helped local audiences visualize state

49 Several family members of Kambona were implicated, including his cousins Eliya Dun-

stan Chipaka and John Dunstan Chipaka. See TNA: FCO 31/682.

50 The existing Penal Code had defined treasonable offences in limited terms: levy war,

murder or attempted murder of the President, and “takes up arms.” Section 39 of the Penal Code was enacted in March 1970 to extend the list of treasonable offences, including acts against the person of the President such as death, maiming, wounding, imprisonment, restraint and deposition by unlawful means, as well as the overthrow by unlawful means of the government and the intimidation of the Executive, Legislature or Judiciary. Section 42 gave the amended Section 39 retrospective application. The phrases “depose the President” and “the overthrow of the Government by unlawful means” were later used in two of the four indictments. See TNA: FCO 31/682. 51 Kambona was never extradited and thus not brought to trial. The regime initially attempted to try him in absentia, but these proceedings were dropped after a few months. See TNA: FCO 31/682. 52 Reuters. 1970. Tanzania: Tanzania’s First Treason Trial Accused Appear In Court. British Pathé Film Archive.

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supremacy and challenger weakness, but they furthermore propogated common knowledge about the “facts” of the case as the trial unfolded in real time, which served to propound the narrative of conflict being generated by the regime. Over the course of the televised trial, the proceedings of which were reported “ad nauseum” by the local press, the prosecution tightly controlled the narrative by relying on the testimony of a single witness, whose reliability was questioned by both the defense and the chief justice.53,54 And yet, while conceding that the prosecution’s case was built upon a witness who “is not the dispassionate observer,” the chief justice still used the witness’ testimony as the basis for his judgment against the accused.55 The largely accommodating role played by the chief justice is worth noting here. Chief Justice Telford Georges was a West Indian jurist who assumed the topmost position in the Tanzanian judiciary shortly after the nation’s creation.56 As an expatriate, was Georges’s a more impartial adjudicator? A lawyer for the defense castigated Georges as a “political” judge, claiming that he had clearly sided with the state even before the prosecution began.57 Others defended Georges as an upstanding chief justice, particularly in light of his willingness to berate the Nyerere regime for its record of detaining political dissidents without trial.58 But the devil is in the details. Georges’s record on the bench reveals his extreme deference to authority, even going so far as to portray the Nyerere regime’s blatant attempts to interfere with due process as inconsequential for the administration of justice.59 Consider Georges’s reaction to the state’s decision to indict the defendants after amending the laws of treason to speak directly to the case at hand. Georges’s remarked that while he could not approve

53 As noted by one British official in a memo to a colleague: “I do not propose to bore you

54

55 57 58

with a lengthy account of the trial proceedings (a) because the Tanzanian press has been reporting them ad nauseam. See TNA: FCO 31/971. Potlako Leballo, Acting President of the Pan-African Congress of South Africa, who had allegedly acted as a courier for the plotters but was also delivering information about the plot directly to Tanzanian security. Leballo was a controversial witness whose background raised questions about potential conflicts of interest. The defense contended that Leballo had been employed by the Tanzanian security authorities as an agent provocateur. See TNA: FCO 31/971. TNA: FCO 31/971. 56 Widner (2001). Bibi Titi’s lawyer argued that Georges was unduly influenced by recent coups abroad (e.g. Uganda) and was thus making judgments in this state of mind. See TNA: FCO 31/971. TNA: FCO 31/971. 59 I revisit the politics of expatriate jurists in Chapter 6.

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of the retrospective legislation in principle, such moves made no difference in practice. This was because, Georges’s argued, Tanzania’s original legislation on treason was already sufficient to convict the defendants on trial. As such, it did not seem to him to be “an appropriate case in which a Court should exercise leniency in order to prevent retrospective legislation from working an injustice.”60 In other words, Georges’s both denied the legitimacy of the treason amendments yet argued that the defendants had acted so traitorously that they should be convicted of treason anyway. The trial finally concluded on February 9, 1971, when Georges convicted and sentenced each of the accused to prison, ranging from 10 years to life. As he delivered the verdicts, Georges ignored the defense counsel’s pleas for leniency and rejoined that forgiveness could not be granted to agents attempting to undermine political stability. The full text of the verdict was carried by the Tanzanian press as part of an intense media blitz in the government-controlled press, coverage that helped popularize understanding of the conspiracy as an open-and-shut case of failed rebellion.61 5.1.5 The Role of Punishment in the Consolidation of Power By the beginning of the 1970s, Nyerere had proven himself remarkably capable of defending his position atop the ruling party and state. But was this outcome a destiny foretold? As made clear by the events leading up the declaration of one-party rule,62 Tanzania’s trajectory could have many gone different ways. At times, Nyerere made mistakes, trusting those he should not have, in some instances even casting doubt about his ability to withstand threats to his survival. That Nyerere ultimately weathered these crises with aplomb should not downplay the uncertain path that he took to get there. To the contrary, it warrants more scrutiny toward the strategies and devices deployed to generate these results. Unpacking pathways of punishment is useful in this regard, particularly how judicial and extrajudicial strategies were deployed in response to various threats to his survival. An often overlooked part of this history is the role of the courts, or how judicial pathways of punishment emerged in response to threats to regime cohesion. Political trials after 60 TNA: FCO 31/971. 61 TNA: FCO 31/971. 62 In 1977, TANU and the Afro-Shirazi Party (ASP) merged into a single organization, the

Chama Cha Mapinduzi (CCM), which at the time was the only legal party.

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Zanzibar revolution Nyerere proposes one-party state under TANU Preventive Detention Act Zanzibar declares independence

Kambona accused of coup conspiracy

Tanganyika military rebellion Arusha declaration Zanzibar + Tanganyika become Tanzania

Tanganyika declares independence

1961

One-party rule ratified in constitution

1962

1963

1964

1965

1967

1970

1971 Treason trial ends in conviction

Court martial against mutineers in Tanganyika

Treason trial for conspirators begins

figure 5.1. Timeline of select events in Tanzania, 1961–1971 Significant political events pertaining to Tanzania’s political development, including the revolution on the island of Zanzibar, military rebellion on the mainland, and the union of Tanganyika and Zanzibar are featured above the line; political trials in reaction to political crises are featured below the line.

the 1964 mutiny and the crisis of 1970 helped popularize narratives that challenging Nyerere was a futile endeavor. Meanwhile, the frequent and largely unimpeded use of detention without trial against political opponents helped stymie opposition to one-party rule. The latter approach can in part be explained by the source of the threat; opponents who openly mobilized against the regime posed a more clear and present danger to the status quo, which made them convenient focal points for extrajudicial violence. In other words, the fact that the Nyerere regime routinely detained without trial members of the opposition comports with the main theory, wherein overt threats are often better dealt with by extrajudicial means. It is important to note that while judicial and extrajudicial repression helped the leadership of Tanzania achieve regime cohesion and a oneparty state, so did many other measures. Even in retrospect, it is difficult to infer whether any single effort was decisive in shoring up support for the status quo. But the reality is that autocratic survival is not the product of any single effort, but of many concurrent, often overlapping tactics that build to a greater whole. Trials, pledges, and referenda should be seen as components of a broader strategy to restore confidence in Nyerere and TANU. A judicial strategy of repression was thus one among many regime-building exercises contributing to the consolidation of one-party rule.

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5.2 the case of sierra leone Sierra Leone emerged from British rule on April 27, 1961, in what was then described as “one of the most tranquil transition periods in colonial history.”63 Yet, only a few days before the utterance of this high praise, the government had detained without charge 18 members of the opposition All People’s Congress (APC), including its leader Siaka Stevens. The arrests had been made under an emergency regulations order issued by the colonial governor (acting on the advice of the leader of the Sierra Leone’s People Party (SLPP) Sir Milton Margai) on the grounds that the APC was a suspected “terrorist organization believed to be financed by an outside power for the purpose of furthering subversive activities.”64,65 The extrajudicial detention of APC leaders during Sierra Leone’s historic transition to independence belied the notion that the transfer of power had been peaceful.66 It also revealed the severity of the break up between former allies Margai and Stevens, the cofounders of the SLPP. Before Stevens defected from the SLPP, he had represented the left-wing factions within the independence movement, which served to counterbalance the more conservative, traditional interests of Margai. However, after Stevens began to organize in overt opposition to the ruling party, rivalry between the former allies would only worsen. Over the ensuing years, the electoral playing field became increasingly contested, culminating in a series of coups and countercoups by the close of the decade. The ominous undertone of Sierra Leone’s independence celebrations thus set the stage for the tumultuous events to follow. In the next section, I unpack these events in greater detail, beginning with the contentious politics of Sierra Leone’s independence movement. Laying this groundwork is helpful toward understanding the logics of judicial and extrajudicial repression as they were used in postcolonial Sierra Leone.

63 The Chicago Defender (May 06, 1961). Sierra Leone ends colony status in quiet transi-

tion.

64 Allen (1968). 65 Other reports claimed that the APC had only intended to plan a general strike in

Freetown. See Pick, H. (April 19, 1961). Opposition leader detained. The Guardian.

66 In fact, the British High Commissioner remarked in a confidential intradepartmental note

that “it is embarrassing to Sierra Leone Ministers to be reminded that their first act as an independent Government was to renew the Emergency Regulations which, with the Prime Minister’s agreement, the Governor had invoked a few days before independence.” See TNA: DO 195/122.

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5 Pathways of Punishment 5.2.1 Party Politics before and after Independence

In the decade leading up to independence, one of the main vehicles championing the cause of indigenous rule was the Sierra Leone People’s Party (SLPP) founded in 1951 by Milton Margai and Siaka Stevens. Soon after its founding, the SLPP was elected to the Colonial Legislative Council in the 1951 and 1957 elections under Margai, who championed efforts to draft a new constitution that would decolonize Sierra Leone. However, disagreement between Margai and Stevens soon emerged over their respective visions for a postcolonial future. Whereas Margai represented the interests of a more conservative, educated business class, as well as traditional leaders, Stevens, a former trade unionist, leaned more radical and thus represented the interests of a less well-educated working class.67 These divisions were further reflected along ethnic lines, with the Mende of the Southern region siding with Margai and the Temne of the North siding with Stevens. In 1957, Stevens left the SLPP with Margai’s brother Albert to launch a new organization, the People’s National Party (PNP), which aimed for greater African involvement in the British colonial government. Albert would eventually return to the SLPP and become his brother’s successor; Stevens, however, would not return the SLPP and instead joined the All Peoples Congress (APC) on the eve of independence. Unlike other opposition parties that had been incorporated or otherwise subsumed by the SLPP, the APC proved unwilling to compromise from the outset. For example, when all of Sierra Leone’s political parties signed the new independence constitution at the April 1960 constitutional conference in London, the APC was the lone exception.68 The APC thus emerged from the constitutional conference as the only organized opposition to the SLPP. The government’s subsequent decision to detain APC members during the independence celebrations reflected their concern that Stevens and others would attempt to undermine or humiliate the newly empowered indigenous government of Sierra Leone. This would be the first (but certainly not the last) time that the SLPP would summarily detain the APC without trial in the interest of public order. 67 TNA: DO 195/122. 68 Among the parties present were the SLPP, the PNP, the United Progressive Party (UPP),

the Independent Progressive Party (IPP), and the APC. The APC’s main goal at the conference was to get the other parties to agree to hold elections before independence. Otherwise, the APC would remain unrepresented in the new independence government. See TNA: DO 195/122.

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Despite attempts to silence the APC, once the SLPP government lifted the emergency regulations, the APC began efforts to build public confidence in the party as a representative body that would respect the constitutional transfer of power. As a result of their campaign, the APC won 16 of 62 directly elected seats in the 1962 general election.69 The APC would continue to gain more electoral ground over the ensuing years, and though they were still in the minority in the House, the SLPP leadership grew increasingly uncomfortable with the reality that opposition players were occupying more seats in parliament. In response to the growing opposition threat, Many SLPP leaders tried to admit former opponents to the ruling party or grant them positions in the Cabinet, strategies of cooptation that had been used to debilitate other opposition parties in the past. Patronage in the form of local development funds and ministerial portfolios were thus offered to induce APC members to cross the floor.70 But for members who could not be bought, the SLPP also strategically withheld funds from local councils and thereby deprived members of their main livelihood. Parliament also passed a bill in November 1962 titled “An Act for the Maintenance and Securing of Peace Order and Good Government during periods of Public Emergency,” which granted the government great discretion to detain or deport persons during periods of public emergency.71 In addition, local customary courts (run by pro-SLPP traditional authorities) were complicit in the jailing of APC leaders and their supporters.72 Despite this concerted campaign of recruitment and harassment, in the end, only two APC members crossed the floor to the SLPP.73 Efforts to repress the opposition were reinvigorated when Albert Margai assumed leadership of the SLPP following his brother Milton’s death in 1964. As he moved to reshape the party under his control, he vowed swift, repressive measures to eviscerate the APC. During a speech at the 1965 SLPP Conference, Albert remarked, “I am now ready to turn my guns on the opposition and pulverize them.”74 To this end, parliament enacted laws making it more difficult for APC members to campaign and stand in local elections while APC members were routinely targeted for arbitrary arrest and detention without trial. APC detentions typically

69 TNA: DO 195/122. 70 Allen (1968). 73 Allen (1968). 74 Allen (1968).

71 TNA: DO 195/122.

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72 Allen (1968).

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spiked in the aftermath of opposition protests and riots that had been triggered by new laws restricting their right to mobilize. Such efforts had moderate success in weakening the APC since some members were forced to forfeit their seats in parliament while in detention.75 Overall, however, the APC remained a small but persistent source of opposition. Albert’s most consequential attempt to eliminate the opposition began in 1965 when he introduced a resolution to establish a one-party state. The central thrust of the proposal was published in a government White Paper, wherein it was claimed that “the idea of a One Party System has come about as a result of a genuine desire on the part of the Government for national unity, solidarity and progress. It has not been motivated by any thirst for power nor by any desire to entrench the present Government perpetually in power by undemocratic and unconstitutional means.”76 Few interpreted these claims at face value; many instead presumed that calls for unity were mere pretext by Albert to entrench his power over the postcolonial state. The one-party proposal thus provoked considerable backlash both within and without the ruling party that would drag on for years – ultimately morphing into a public, explicit campaign against Albert himself.77 One of the leading voices in the one-party debate was the APC newspaper We Yone, a vociferous critic of the ruling party and its purportedly corrupt practices. In fact, the newspaper routinely acussed SLPP leaders by name of illicit deeds. In an effort to silence the opposition news organ, the Attorney General’s office initiated a series of libel proceedings against We Yone editors and journalists. But each of these cases ended in acquittal, a massive embarrassment for the SLPP. In fact, the Attorney General’s inability to secure a conviction after seven consecutive prosecutions was described at the time as “an ignomious failure” to “silence the newspaper’s pungent criticisms.”78,79 Efforts to contain opposition backlash were thus largely ineffective, and in fact provided more fodder for the opposition media to lambast his increasingly authoritarian policies. As such, the one-party question

75 Allen (1968). 76 TNA: DO 195/350. 77 TNA: DO 195/350. 78 TNA: DO 195/350. 79 These judgments led Albert to go after the judiciary, specifically the chief justice, whom

Albert accused of being sympathetic to the opposition. See Chapter 6 for a more detailed discussion about executive-judicial relations in Sierra Leone and their ramifications for the composition of the bench.

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would remain hotly contested in the run-up to the 1967 general election and have dramatic repercussions for the future of the SLPP. 5.2.2 The Crises of 1967-68: An Election, a Coup, and Two Countercoups 1967-1968 proved to be watershed years for Sierra Leone, beginning with a dramatic election that ousted the incumbent, a coup immediately thereafter to reinstall said incumbent, a countercoup two days later that instated a military junta, followed by yet another countercoup thirteen months later that finally returned to power the original winners of the 1967 election. The days, weeks, months, and years of chaos that gripped Sierra Leone until this crisis was resolved had lasting consequences on the postcolonial state. To make sense of these events – as well as the pathways of punishment for the individuals involved – I provide a brief timeline that highlights key actors and developments. A Preelection Plot? On February 8, 1967, just weeks before the general election, Albert announced that an attempted military coup had been foiled.80 The details of the plot and its discovery had been aided by the government of Guinea, which had apparently disclosed to Albert that the alleged plotters had attempted to seek assistance from Guinean authorities in carrying out their conspiracy. Among those implicated in the plot were leaders of the APC, including Siaka Stevens, Dr. R. Sarif Easmon, and T.S. Johnson, as well as senior military officers, including Colonel Bangura. Albert said the discovery of this plot, which would have included his assassination, necessitated the installation of a one-party system.81 On February 10, the accused plotters were arrested on charges of treason, specifically plotting to kill the prime minister and take over the government by unconstitutional means, and remanded pending trial. Before the trial could begin, however, a series of unforeseen events completely upended the political landscape of Sierra Leone. The 1967 General Elections As the March 17 election approached, inter-party violence was on the rise. The government thus declared a state of emergency in the weeks 80 Fisher (1969).

81 Fisher (1969).

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before the election specifically in opposition strongholds. Though polling day proceeded without major incident, delays in vote counts and muddled messaging regarding the outcome of the elections kindled popular unrest; the state subsequently declared a dusk-to-dawn curfew on March 20.82 As the votes were finally tallied, the outcome of the election produced a stunning result: The APC won a plurality of seats, meaning Stevens was eligible to become prime minister.83 This in itself was a shocking reversal of fortunes for the incumbent SLPP leadership who now found themselves in the opposition, but the SLPP’s loss was particularly surprising considering that intentions to rig the election in their favor were widely known – ballot stuffing, voter intimidation, and pre-electoral pacts with independents and local traditional authorities were supposed to ensure SLPP’s victory.84 That the SLPP lost despite these maneuvers was a testament to the lack of cohesion within the ruling group, especially Albert’s inability to rally others behind his increasingly unpopular rule. Postelection Military Interventions: A Coup and Countercoup On March 21, 1967, four days after the disputed general election but before the results had been officially ratified, Governor General Sir Henry Lightfoot-Boston swore in Stevens as the new prime minister. Earlier that day, Stevens had refused appeals to form a coalition government between the APC and SLPP on grounds that it would have paved the path for oneparty dictatorship, which would have fed directly into Albert Margai’s designs. Moments after this swearing-in ceremony, Brigadier David Lansana, Commander of the Sierra Leone Army, arrested both Governor-General Lightfoot-Boston and Prime Minister Stevens, claiming that LightfootBoston had acted unconstitutionally in declaring Stevens as the new head of government when the election results were still contested. As Lansana was making his arrests, military troops moved on the capital and attacked APC headquarters; the troops also fired on civilians who had gathered to celebrate the election returns. The next day, Brigadier Lansana announced in a radio broadcast that while Albert Margai would remain prime minister, martial law would be in effect until further notice and Lansana would wait to return control to 82 Allen (1968). 83 The APC and SLPP won 32 seats each, but 2 ex-SLPP Independents (Kutubu Kai-Samba

and Luseni A. M Brewah) sided with the APC MPs (Allen 1968).

84 Allen (1968).

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a civilian-led government “as soon as the situation becomes more favorable.”85 As Lansana explained, As custodian of state security, I have decided to protect the constitution and maintain law and order. Therefore, from now on, we are operating under martial law. I repeat, we are operating under martial law! From now on the army is in control and will use all its power to see that the constitution is not violated.86

However, Lansana’s custodianship was short lived. Less than 48 hours after the coup, Lansana and Albert Margai were arrested by Lansana’s subordinate officers, including a group of majors who had initially supported the coup but were against allowing Albert Margai to remain in power. The countercoup leaders announced that the constitution was suspended, all political parties were to be dissolved, and all newspapers save the government-owned Daily Mail were to be suspended. These moves were framed by the counter-coup leaders as temporary; constitutional government and civil society would ostensibly be restored as soon as the immediate crises were resolved. While Major-General Lightfoot-Boston was released from house arrest, Brigadier Lansana, Margai, and Stevens were placed in protective custody. This was the second bloodless coup in two days. Speaking on behalf of the counter-coup leaders, Major Charles Blake explained their motives as follows: “We can’t stress too much that we acted only to avert civil war. This was an election clearly along tribal lines, west and north against south and east. Neither party and no one tribe could command the whole country’s loyalty.”87 He also referenced Albert Margai’s corruption and economic mismanagement as further justification for the military’s intervention. Regardless of their true intent, the countercoup leaders used the crisis as pretext to form the National Reformation Council (NRC), which was comprised of five commanding officers and two senior police officials. Mindful of the ethnic cleavages and regional tensions that had precipitated factionalism within the ruling party, the NRC was mindful to create at least the appearance of an ethnically and regionally balanced council.88 Lieutenant-Colonel Andrew Juxon-Smith would serve as chairman of the military ruling group.

85 Fisher (1969). 86 Fisher (1969). 87 TNA: FCO 38/33. 88 News in brief. (1967). Africa Report, 12(5), 21.

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While the topmost political posts would be occupied by military officers, many civilian holdovers from the old SLPP regime were allowed to continue in their old positions or were promoted to more prominent positions in the new government. Such was the case for former speaker of the house of representatives Banja Tejan-sie, an SLPP stalwart, who was appointed as chief justice.89 These continuities suggest that the outward justifications for the countercoup (e.g. the imminent danger of civil war and corruption of the incumbent regime) were likely pretense for the military to purge particular factions from the government, most notably factions of the ruling party that were aligned behind Albert Margai. One of the early acts of the NRC junta was to set up a commission of inquiry under the chairmanship of Justice G. F. Dove-Edwin, a judge of the Appeal Court of Sierra Leone, to enquire into the conduct of the 1967 general election. On November 29, 1967, the government published the report of the Dove-Edwin Commission of Inquiry into the controversial March 1967 general elections. Justice Dove-Edwin and two military colleagues on the commission concluded that not only had the APC won the election by free and fair means, but the SLPP had used “all means, fair or foul” to remain in office. They further concluded that Lansana’s coup was complicit in the SLPP’s conspiracy.90 The accompanying White Paper announced that the NRC would hand over control to a civilian government in due course. It specifically proposed setting up a so-called Civilian Rule Committee to advise on how the handover should be achieved.91 Despite its ambitious plans, the NRC ultimately failed to achieve its intended peaceful transition of power. As events of the following year would show, growing pressure from various civil society groups (including political elites, trade unions, and university students) would precipitate unrest and arguably contribute to the junta’s collapse.

89 This followed the forced resignation of Chief Justice Gershon Collier, a close political

associate of Albert Margai whom many criticized for his lack of judicial experience.

90 TNA: FCO 38/33. 91 This committee, composed of 74 persons representing the political parties and the

interests of cultural groups and local authorities, was to meet in secret session. See TNA: FCO 38/33.

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Another Countercoup: The 1968 Military Intervention On April 18, 1968, barely a year after the March 1967 coup and countercoup, junior officers of the army and police led by two warrant officers – Sergeants Major Patrick Gordon Conteh and Amadu Rogers – staged yet another coup. Conteh and Rogers branded themselves as the “AntiCorruption Revolutionary Movement” whose main intent was to remove the unnecessary obstacles to civilian rule imposed by the NRC. To these ends, they installed a National Interim Council composed of military privates and noncommissioned officers who were loyal to Stevens, the latter of whom was sworn in as prime minister approximately a week later on April 26, 1968.92 Among the arrested leaders of the ousted NRC were its Chairman Juxon-Smith, Deputy Chairman Leslie William Leigh, spokesman Major Augustine Charles Blake, Major Bokarie Idrissa Kai-Samba, AttorneyGeneral Berthan Macaulay. They were charged with treason and corruption, the particulars of which were as follows: “on the 22nd day of March, 1967, and on diverse days between that date and the 18th day of April, 1968, the NRC prepared and endeavored to delay the transfer of power to civilian control and thereby overthrow the government of Sierra Leone by unlawful means.”93 5.2.3 Pathways of Punishment The crises of 1967 and 1968 completely upended the political landscape in Sierra Leone, not only by reversing the fortunes of the incumbent and opposition, but also by creating the precedent of military intervention in national politics. How did the victors of these contests ultimately decide to punish the losers? What strategies of repression were used to thwart political challengers in the midst of incredible chaos and uncertainty? In general, strategies of repression adhered to the predictions of the main theory: The victors opted to use a judicial approach against members of their own regime and an extrajudicial approach against their political opponents. Military insurrectionists were thus put on trial while members of the opposition (which post-1967 was the SLPP) were detained without trial.

92 TNA: BW 55/14.

93 TNA: BW 55/14.

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Before proceeding with the analysis, it is worth noting that tracking repression outcomes over this short yet chaotic interval of postcolonial history was by no means a straightforward task. With respect to judicial proceedings in the superior courts, given that records of politically sensitive cases were not well preserved by the Sierra Leonean government (in addition to the fact that some cases dragged on for years without discernible end), trial timelines had to be collated from a variety of contemporaneous sources, including historical newspapers from the ProQuest Historical Newspapers Databases as well as intelligence reports from the British National Archives. Leveraging these diverse sources enabled me to triangulate the details for one military officer whose punishment was not enacted until after two more coups had occured. In fact, by the time this individual was finally executed, other individuals who had been implicated in the intervening coups had already been tried and convicted. It is also important to remember the political backdrop of these cases. While dealing with the opposition was relatively straightforward (for example, the APC simply turned the SLPP’s own repressive tactics against them), establishing any sense of political order required rebuilding regime cohesion among competing factions both within the ruling party and the military. Below, I provide evidence that suggests that these intentions motivated the trials of military and civilian leaders. These findings further suggest that the pathways of punishment in Sierra Leone, regardless of whether the government was controlled by military junta or civilian dictatorship, largely comport with theoretical expectations outlined in Chapter 2. Repressing the Opposition The SLPP had been severely weakened by the crises of 1967, most notably by the forced exile of Albert Margai. Though many remaining members of the SLPP were relieved by Albert’s departure, the party suffered greater setbacks soon thereafter. After Stevens was restored as prime minister in May 1968, he issued a public warning that the martial law ban on political meetings was still in effect and he further threatened “most drastic measures against persons who take any action of a subversive character.”94 Less than a month later on June 4, approximately 40

94 TNA: FCO 65/499.

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members of the SLPP were detained without trial for participating in a subversive organization. Though Albert was by this time already living in exile, Stevens continued to stoke local animosity against Albert and other SLPP leaders, accusing them of engaging in “blatant tribalism” designed to undermine national unity.95 Stevens’ powers to detain the SLPP without trial became further entrenched later that year in November when the house of representatives approved emergency regulations in the interest of public order and security. As prime minister, Stevens could now personally authorize arrests without warrant, detentions without trial for fourteen days, censorship and suppression of newspapers, and the expulsion of noncitizens.96 Though Albert was beyond Stevens’s immediate grasp, local members of the SLPP were more easily rounded up under these new regulations. In fact, more than 400 people were arrested in army and police operations, including SLPP leader Salia Jusu-Sheriff and several paramount chiefs.97 The government also summarily banned two pro-SLPP newspapers, The Express and The People, for their editorials accusing the security forces of “robbing, plundering, raping, and maiming civilians.”98 Editors of the two papers were subsequently detained without trial under the emergency regulations. These emergency regulations would be invoked repeatedly against new opposition threats, most notably in September 1970 (approximately two years after the original declaration of martial law), when Mende dissidents within the APC defected to form the United Democratic Party. In October, Stevens banned the new party and detained without trial its founding members, including John Karefa-Smart, a former SLPP foreign minister under Milton Margai.99 Courts after Coups As Stevens waged a wide extrajudicial campaign against the opposition, judicial proceedings were set in motion against the leaders of the ousted NRC. On September 25, 1968, the Freetown Magistrate’s Court indicted Juxon-Smith, ex–Attorney General Berthan Macaulay, and four other NRC members on two charges of treason in connection with the March 1967 coup.100 After a year and a half of proceedings, in May 1970, the

95 TNA: FCO 65/499. 96 TNA: FCO 65/499. 97 TNA: FCO 65/499. 98 TNA: FCO 65/499. 99 TNA: FCO 65/831-2. 100 In February 1968, the local newspaper Unity printed a brief report that members

of the NRC, including Juxon-Smith, would appear in court later that month. Others

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case finally appeared before a special session of the Supreme Court.101 On July 31, 1970, Juxon-Smith, Macaulay, and others were sentenced to death for treason, though the executions were quashed upon appeal and reduced to time in detention.102 Given that the treason trials of the NRC coincided with the massive detention without trial of the SLPP, this raises a question: What purpose did the treason trials serve, especially when the proceedings were so prolonged and less efficient than the arbitrary measures being used against the opposition? I argue that, for Stevens, it was imperative to bring the leaders of the ousted military junta to trial because of the continued threat they posed to regime cohesion. In particular, the recent experience of coup and countercoups in rapid succession revealed the imminent dangers of unchecked factionalism within the military, as well as the military’s proclivity for intervening in politics. It was hence vital to not only punish the ousted NRC leaders for their illegal seizure of power, but to furthermore showcase to other members of the military that there would be strict consequences to defying the constitutional order. To achieve these ends, the trial explained the circumstances of the coup and justified why the coup leaders should be held accountable; that is, the trial projected a more predictable story of conflict and resolution onto the situation when the facts of the case were actually far more obscure. And yet, the story was hardly riveting. As British observers noted at the time, the “dreary and turgid” proceedings were dragging on for months and, at least for the British, proved difficult to follow. This was partly due to the fact that none of the locally based newspapers had court reporters on staff and tape recorders were not permitted in the courtroom.103 The best way of staying up to date with the trial was thus attending the court in-person, though observing these proceedings

charged included William Leigh, ex-Commissioner of Police and Deputy Chairman of the NRC; Charles Blake, ex-Major; Bokarie Idrissa Kai-Samba, ex-Major: M. M. Koroma, ex-Major; Berthan Macaulay, the former attorney-general and Samuel Forah, ex-captain in the NRC Secretariat. TNA: FCO 65/499. 101 Sierra Leone calls ex-chief a traitor. (1968, Sep 26). New York Times. 102 Ex-ruler doomed in Africa. (July 31, 1970). New York Times. 103 TNA: FCO 65/831-2.

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first-hand was an extremely tedious experience. As one British official observed, the slow tempo of proceedings was further exacerbated by “the custom of the Judge having to write, himself in long-hand, a running record of the evidence elicted including, if specially requested to do so by counsel, a word for word record of questions and answers.”104 Note that such customs might have been calculated to allow the prosecution and the judge to more tightly control the conduct of court and how its proceedings were disseminated. As one British official remarked, “it is with the greatest diffidence that I suggest myself that the prosecution has been trying to establish before the courts facts which ‘everyone knows,’ if only by hearsay, and to connect up by witnesses the various accused showing that they have knowledge and responsibility for what was going on.”105 In other words, it seems that the trial was less preoccupied with discovering new information and more concerned with generating common knowledge. But another reason for the slow pace of the trial was the sheer number of defendants on the docket.106 In fact, there were actually two treason trials pertaining to the coup and countercoup of 1967 that were happening at the same time – and some defendants were actually indicted in both cases.107 The concurrent proceedings led to frequent postponements (due to the overlapping lists of defendants and witnesses) and thus further delayed the resolution of each trial. Looking at these cases in hindsight, what sense are we to make of their long, drawn out proceedings? Were such cases dreary by design? Evidence suggests that the seemingly interminable prosecution had demoralizing effects on the defense counsel, many of whom were English barristers. This largely expatriate legal team had been procured by ex-Attorney General Berthan Macaulay (who chose to represent himself) based on his extensive personal network of common law jurists. Though this provided the defendants with a unique opportunity to be represented by outside counsel, archival records from the British government reveal that the English barristers were becoming increasingly aggrieved by the

104 TNA: FCO 65/831-2. 105 TNA: FCO 65/831-2. 106 As one member of the British High Commission observed, “The trial is dragging on its

very slow way. It case is now in its 56th day or thereabouts, and the prosecution is still being presented. With so many accused, the cross-questioning is of course very involved and lengthy.” See TNA: FCO 65/831-2. 107 See “The Trials of Ex-Brigadier David Lansana” for information on the second case.

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procedural delays, which as the trial wore on, made them more eager to resolve the case quickly and return to their home country. Such sentiments were summarized in a report by the British High Commissioner: The counsel from Britain are, I believe, all or mostly members of Dingle Foot’s Chambers, with which Berthan Macaulay had a past connection. They are I think very depressed at the way the trial is dragging out, and with certain other aspects of it and they are reluctantly facing up to the prospect of a long stay here. I have had them up to the house socially, but we have pretty scrupulously kept off discussion of the trial. It has, however, been fairly clear to me that they are not enamoured of the way in which [the Attorney-General] is running the prosecution and is effectively the main driving force behind the trial. Their general gloom will not be alleviated by the difficulties into which Desmond de Silva has got himself.108

The Desmond de Silva affair alluded to above concerned the arrest of one of the British counsel following an otherwise routine visit to the Sierra Leone prison to meet with one of the defendants. It was alleged by prison authorities that de Silva had violated the Police Act by attempting to transmit items (specifically a bottle of whiskey) to a prisoner – a crime with a maximum penalty of six months imprisonment, a fine, or both.109 Though de Silva was ultimately released, such tactics had a noticeable effect on the morale of the outside counsel, most of whom were exasperated and exhausted by the endless procedural delays and now frightened by the prospect of detention and torture.110 By the time the trial finally came to a close in July 1970, the defense had long been operating from a hopeless standpoint. There was already a sense of deep resignation when the chief justice delivered guilty verdicts against the NRC leadership, a sentence that carried the death penalty. While Macaulay led an impressive effort to appeal the conviction and sentence in the appellate court – which ultimately quashed the death sentence – the defendants remained in detention. In fact, Macaulay was not released until December 31, 1971, following a public statement of repentance for his involvement in the coup.111 Upon his release, it was 108 TNA: FCO 65/831-2. 109 TNA: FCO 65/831-2. 110 In the notes on de Silva’s arrest and indictment, the British High Commissioner

remarked that de Silva “appeared in a bad way” following reports that “he had been humiliated in prison and kept awake all night by the sounds of another prisoner being beaten up in the next cell.” See TNA: FCO 65/831-2. 111 Macualay was released along with another seven detainees, including unnamed politi-

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further reported that Stevens had instructed Maucaulay to “keep his mouth shut” about any future plans to sue the government or else be returned to detention.112 In the end, the damage to Macaulay and the former NRC leaders had already been done. Soon after their release from prison, many left Sierra Leone and spent the remainder of their lives in exile. Courts after Failed Coups Judicial strategies of punishment were not limited to the leaders of ousted juntas; they were also invoked in the wake of failed coups. This is what happened in March 1971 after Brigadier John Bangura led a group of army officers to attack the prime minister’s official residence, killing two of Stevens’ bodyguards in the process, and placed the governor-general under house arrest. Though Bangura had actually led the countercoup in 1968 to restore power to Stevens from the NRC, his allegiance to Stevens had weakened over the ensuing years due to his opposition to many of Stevens’s policies, including the ongoing state of emergency, the efforts to introduce a republican constitution, and insufficient army wages.113 But as was the case with Lansana, Bangura’s effort was quickly suppressed: three days after the initial attack, Stevens flew to Guinea and signed a defense treaty with the Sékou Toure regime that led to 200 Guinean soldiers being deployed to Sierra Leone where they restored law and order under Stevens.114 In the immediate wake of this failed coup, Stevens was able to seize upon the still unfolding crisis to push forward his plans to consolidate power. On April 17, 1971, he resurrected the 1967 Republic Bill originally drafted by Albert Margai and had it passed through Parliament, declaring Sierra Leone a constitutional republic. This Bill was a major symbolic change for Sierra Leone: The president was no longer a figurehead who served at the pleasure of the cabinet, but a much more powerful executive with considerable arbitrary discretion. Meanwile, the military responded by publicly disavowing Bangura and the other insurrectionist officers.

cians who had deserted the APC to join the opposition. See TNA: FCO 65/831-2. 112 TNA: FCO 65/831-2. 113 Nation at the brink. (July 07, 1971). The Guardian. 114 Nation at the brink. (July 07, 1971). The Guardian.

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According to Lt. Col. Sam King, a large percentage of the Army did not support Bangura and pledged loyalty to Stevens.115 A few weeks later, treason trial proceedings began against Bangura and other military officers who had participated in the insurrection, as well as a handful of SLPP cabinet ministers who were alleged to have been complicit in the plot and ready to assume roles in the new government that would have been installed by Bangura’s coup.116 Both the military officers and civilians were tried by court martial. By the end of June, Bangura and six other officers were convicted of treason and sentenced to death, while two other officers had their sentences reduced to life imprisonment. Bangura was executed on June 29, 1971, after which his corpse was publicly displayed.117 The swift, brutal end for Bangura, who had only a few years before helped bring Stevens back to power, was a powerful, literal demonstration of the consequences of failed insurrection. The Trials of Ex-Brigadier David Lansana One person who merits special attention in this analysis is David Lansana, the former Brigadier who was in many ways culpable for igniting the series of events that would plunge Sierra Leone into repeated constitutional crises. After all, it was Lansana who had arrested Stevens and the governor-general following the 1967 general elections in an attempt to prevent the transfer of power from the incumbent to the opposition. But what was to ultimately become of Lansana once the dust had cleared and Stevens was finally in control? Lansana’s case was unusual: His fate would take over eight years to fully determine. However, the details of his punishment under two successive coup regimes provides rare insight into the logic of punishment in autocratic contexts. Initially, it appeared that Lansana was destined to live a quiet life in diplomatic exile. On April 4, 1967, only a few weeks after his attempt to install Albert Margai as prime minister, Lansana was released from detention and assigned by the NRC to serve “special duties” in Sierra Leone’s embassy in Washington, DC.118 However, a few months later,

115 TNA: FCO 65/831-2. 116 The civilians who were indicted included Mrs. Jemillah Bangura, wife of Brigadier

Bangura, Daramy, Stevens’ cabinet minister and CP Foray, Stevens’ cabinet minister. TNA: FCO 65/831-2. 117 TNA: FCO 65/831-2. 118 TNA: PREM 16/678.

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the Sierra Leone government recalled Lansana from his post. Fearing arrest and prosecution upon his return, Lansana sought political asylum in Liberia. But unfortunately for Lansana, Sierra Leone had an extradition treaty with Liberia that required Liberian President William Tubman to consent to Lansana’s extradition on July 16 whereupon Lansana was promptly arrested.119 In order to gain the consent of President Tubman to extradite Lansana, the Sierra Leonean government had apparently promised to not charge him with treason but with the lesser offense of wrongful imprisonment. As such, on July 22, 1967, Lansana was sentenced by the supreme court to five years imprisonment and payment of damages for charges of “assault and false imprisonment” of several persons, including Stevens and the former governor-general Lightfoot-Boston.120 However, Sierra Leone ultimately reneged on its promise not to prosecute Lansana for the higher offense of treason, though this latter case would not be resolved for years, in part due to the delays caused by the 1968 coup. In fact, by the time Lansana finally stood trial for treason, it was February 1969 – after Bangura’s countercoup had restored Stevens to power. Lansana was tried alongside fifteen other defendants at a special session of the supreme court – only weeks before the trial of Juxon-Smith and six others (four of whom were to also appear as defendants in the Lansana trial). At the opening session, the state read a twelve-count charge of treason, treason felony and misprision of treason against Lansana. The trial unfolded in a similar fashion to the Juxon-Smith proceedings: a long, turgid, and interminable affair that seemed designed to demoralize the defendants on trial.121 When the trial finally concluded in April 1970, Lansana and 10 others were found guilty of treason, which carried the death penalty. However, Lansana was granted a reprieve by Stevens, after which he was transferred to Pademba Road Prison to serve an indefinite sentence. Over the ensuing years, it remained unclear what would ultimately happen to Lansana. Stevens routinely granted pardons to political prisoners who were no longer deemed threatening to his rule, often to commemorate anniversaries of independence or other political celebrations. It thus seemed reasonable to assume that Lansana might be released on such an occasion, especially after so many years had passed since the original controversy.

119 TNA: PREM 16/678.

120 TNA: PREM 16/678.

121 TNA: PREM 16/678.

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By 1975, Lansana was still in prison, though Stevens indicated that he was ready to execute Lansana and the other conspirators in the original 1967 case. Upon hearing this news, then British Prime Minister Harold Wilson sent a message to Stevens which was hand delivered by the locally stationed British High Commissioner asking Stevens to consider exercising his prerogative of clemency to grant a pardon for Lansana. Records of the meetings between Stevens and the British High Commissioner provide a rare glimpse into Stevens’ position on the issue. After delivering the British Prime Minister’s message, the High Commissioner summarized Stevens’s response: He realized that any executions would attract some criticism, but he would not be properly discharging his responsibilities to his ministers, his party, the judges and jurors, the army, the police, and the public if he did not make an example this time of the most culpable.

In other words, granting pardons to subordinates might have been acceptable in this case, but to release the original leaders from responsibility would have suggested that crimes did not have consequences.122 As Stevens explained, “to pardon Lansana, Forna, and Taqi after all they had done in recent years … would be seen as irresponsibly softhearted and as encouraging similar adventures in the future.”123 On the surface, this reasoning appeared legally sound; in fact, it was ostensibly a defense of due process. But Stevens revealed an additional consideration that arguably superseded the others: “He could not now pardon Lansana, a Mende, having executed Bangura, a Temne, in 1971.”124 This last comment reveals several points that are pertinent to the main theory. First, justice had to appear to be served in the same way – at least within the military elite. That is, granting clemency to an individual from one ethnic group while not granting it to another could have provoked factionalism among different ethnicities, which might provoke further insurrection or attempted coups. Second, ensuring that the same process of trial and punishment was meted out in both cases – such that individuals who were charged in nearly identical crimes faced the same punitive consequences – helped institutionalize the process of punishment. Stevens sent a written reply to the British prime minister wherein he stated: “I regret my inability to help at this late stage, the due processes of law having been exhausted … For me the matter has now reached a point of no return, especially bearing in mind the fact that a former brigadier Bangura was executed in similar circumstances as those which 122 TNA: PREM 16/678.

123 TNA: PREM 16/678.

124 TNA: PREM 16/678.

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now obtain.”125 Stevens’ letter was dated July 19, 1975, the day Lansana was executed by hanging.126 As was the case with Bangura, Lansana’s body was left on public display at Pemba Prison. 5.2.4 The Role of Punishment in the Consolidation of Power Stevens emerged from these crises with greater powers than before. With the ratification of a republican constitution on April 21, 1971, Stevens was now president of Sierra Leone, meaning he exercised more centralized control than he had previously as prime minister. His executive authority was further entrenched in the 1973 and 1976 elections, the latter of which saw Stevens reelected unopposed.127 And once he was in firm control of the postcolonial state Stevens’s position on the one-party question reversed. Though the national government had already become a de facto one party system, the APC moved to formalize this state of affairs in the 1978 constitutional referendum that created a one-party state with the APC as the only legally permitted party. On June 12, the referendum passed with a reported 97.1% of voters in favor. Following the referendum, the SLPP became an outlawed organization. All opposition members of the house of representatives were thus required to join the APC or else lose their seats.128 What are we to make of these outcomes? The chaos of the first decade of self-rule, wherein Stevens saw his fortunes reverse repeatedly – in some instances literally overnight – is a stark reminder that, as was the case in Tanzania, none of these developments could have been fully prophesied at the outset of independence (See Figure 5.2). But more so than for Nyerere, the military played an outsized role in shaping the pathway to power of Stevens. In particular, the quick succession of coups, failed coups, and countercoups underscored the importance of military discipline toward regime survival. As I have argued earlier, maintaining such discipline often

125 TNA: PREM 16/678. 126 The others hanged included former Minister of Finance Mohamed Forna, Lieutenant

Habib Lansana Kamara, Ibrahim Bash Taqi, and Paramount Chief Bai Makarie N’silk. See TNA: PREM 16/678. 127 The 1973 polls were marred by controversy, including violence against the opposition. This led the SLPP to boycott the election on the grounds that they had been heavily manipulated by the government. Given the SLPP boycott, the APC secured all eighty five seats in the house of representatives. See TNA: FCO 65/2241. 128 TNA: FCO 65/2241.

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APC defeats SLPP in general elections

Albert Margai proposes one-party state under SLPP Sierra Leone declares Independence

1961

1965

Lansana’s coup ousts APC

Countercoup ousts SLPP and installs NRC

Countercoup ousts NRC and installs NIC

1967

1968

Sierra Leone becomes presidential republic

1969

Treason trials against NRC begins

Lansana’s first trial begins and ends

1970

1971

Treason trials (NRC + Lansana) end in conviction

Lansana’s second trial begins

figure 5.2. Timeline of select events in Sierra Leone, 1961–1971 Significant political events pertaining to Sierra Leone’s political development, including efforts to consolidate power and overthrow the government, are featured above the line; political trials in reaction to these events are featured below the line.

meant ensuring that acts of rebellion would be punished; that in special cases, military operatives would be brought to trial. Of course, political trials alone would not be sufficient to quell any misgivings or stave off all future threats. Judicial strategies were part of a much larger repressive apparatus in Sierra Leone, including a wide array of extrajudicial methods of defusing opposition threats. Nonetheless, the conduct of court, especially the ritualistic humiliation of the defendants on trial, arguably contributed to popular understanding that under the Stevens regime, law was not a defender of due process, but a weapon of the state.

5.3 pathways of punishment in perspective This chapter has used the examples of Tanzania and Sierra Leone to trace the pathways of punishment for insider and outsider threats in diverse autocratic contexts. Though each country confronted a unique set of challenges and constraints, they also shared similar threats to regime cohesion that were emblematic of the postcolonial African experience. One important commonality between these cases was the uncertainty surrounding the ability of emerging autocrats to overcome unprecedented obstacles to their survival. Independence leaders confronted doubts about the viability of their new regimes and their individual ability to withstand

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threats to power, and it was against this backdrop that the threat of coups emerged and strategies of repression were developed in response. By grounding the comparison between Tanzania and Sierra Leone in this era, we develop a more nuanced understanding of the different pathways of punishment during a vital period of institutional development. A key finding of this analysis is that emerging autocrats in both contexts largely adhered to the insider–outsider logic of punishment, regardless of whether the regime was a civilian dictatorship or a military junta. Especially striking was the readiness of some autocrats to exploit the colonial institutions of repression that had once been used to suppress indigenous uprising. This was especially the case for Stevens, who had himself faced persecution by the colonial state and later turned these same institutions against his own opposition. In Chapter 6, I delve deeper into the history of these colonial holdovers by examining their perpetuation in postcolonial judiciaries.

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6 A Cooperative Judiciary

The concept of the Judge as neutral, belonging to no party in the multiparty democracy, can have no meaning here where there is one party. If he stands aloof seeming to play the apolitical role which is supposed to be his, his motives will doubtlessly be suspected. A new way must be found. —Chief justice of Tanzania Philip Telford Georges1 If the judges want to play politics, I am quite ready to take them on. —Attorney general of Ghana N. Y. B. Adade2

Recall that the autocrat’s desired outcome in a political trial is to restore obedience to authority by way of punishing their rivals in a court of law. A key component of this process is a cooperative judiciary. Cooperation here entails conducting the court in a fashion that comports with the autocrat’s desires; that is, judges are expected to apply their expertise in a manner that effectively demonstrates the consequences of defying the autocrat’s rules. As explained in Chapter 2, a more professionalized judiciary should go hand-in-hand with a more institutionalized process of punishment. Yet, strict adherence to law can produce perverse outcomes in political trials. Such was the case in 1963 when the Ghanaian Supreme Court ruled that the state had produced insufficient evidence to convict three out of five challengers on trial for treason, a decision that prompted an

1 Georges (1973). 2 The National Archives (TNA): Foreign Commonwealth Office (FCO) 65/696.

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outraged President Nkrumah to dismiss the chief justice and order an immediate retrial under a new judge. Likewise in Zambia in 1969, the chief justice’s decision to acquit a group of soldiers who were accused of foreign subversion prompted both elite and popular backlash against the courts that culminated in the chief justice’s dismissal and self-imposed exile. In these cases, jurists were castigated for basing their decisions on “technicalities” of the law rather than the exigencies of the crisis at hand, underscoring the disconnect between legal and political realities. More broadly, such outcomes suggest that professional jurists may act in ways that are entirely consistent with existing law and procedure but detrimental to the autocrat’s objectives. On what basis can we assume that a jurist will dutifully execute the autocrat’s agenda? And what can autocrats do to better ensure that courts ultimately cooperate? This chapter revisits these questions in the postcolonial period in order to understand when and why judicial cooperation cannot be taken for granted and how autocrats can respond. I focus on the obstacles postcolonial autocrats confronted when they attempted to use courts for repressive ends as well as the strategies and tactics they used to overcome them. The record reveals that autocrats seeking to cultivate a more professionalized judiciary often faced constraints in who they could bring to the bench. In particular, conventional courtpacking strategies (filling senior-most positions with partisan allies) was not always an option unless those allies happened to already hold the necessary legal qualifications. When ideal jurists could not be found, autocrats relied on a combination of ex ante and ex post measures to reign in uncooperative courts. The ex ante and ex post strategies employed by postcolonial autocrats can be generalized to a wide range of autocratic contexts. But it is important to recognize that in carrying out these designs, postcolonial autocrats were able to exploit a unique arrangement with their former colonizers: recruiting expatriate jurists from across the British Commonwealth to serve on African benches. An outsourced stream of foreigners who were experts in English common law yet had little to no understanding of local politics made for a relatively insulated, cooperative judicial labor force, one that proved generally willing to execute political trials without question. Furthermore, the omnipresent threat of ex ante and ex post sanctions ensured that wherever expatriate jurists did not comply, they could be replaced. Records from the British Foreign Commonwealth Office (FCO) and Overseas Development Assistance Programme (ODA) reveal the lengths

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to which postcolonial autocrats attempted to maintain a professionalized judiciary. Communications between postcolonial leaders and British officials were particularly illuminating in this regard, showing how the former felt constricted by their local candidate pool and hence made repeated requests to the British for their assistance in recruiting qualified jurists from abroad. This arrangement served a twofold purpose. Not only did it enable postcolonial autocrats to maintain a larger judicial supply, which made it easier to dismiss or shuffle errant agents and replace them with other qualified candidates, but it furthermore enabled them to circumvent indigenous jurists. The latter was important insofar that autocrats often did not trust indigenous agents to willingly cooperate with their repressive agenda, especially considering that such agents were often local politicians in their own right, making their loyalties to the center suspect. This expatriate-based judicial system was made possible through the cooperation of the British government, which often went to great lengths to fulfill these requests even decades after independence. My main objectives in this chapter are to unpack from whence autocratic courts originated, the logic of their operation, and why some institutions persisted while others were dismantled or fell into desuetude. To these ends, I anchor my analysis in the colonial era, a pivotal period of institutional transformation that had enduring legacies on the structure of postcolonial courts. A key takeaway from this analysis is that autocratic courts in many African contexts tended to be more compliant when autocrats worked within, rather than around, their colonial inheritances. In particular, I find that colonial holdovers in the legal and judicial sectors helped autocrats exploit their former colonizers in ways that furthered their own objectives. After laying this historical groundwork, I provide evidence that autocrats from both East and West Africa solicited expatriate jurists under the logic that such agents would be both professionally qualified and easier to control. I also draw on memoirs and letters written by expatriate jurists that provide insight into how they saw themselves operating in postcolonial courts.

6.1 background: colonial origins of postcolonial courts For the European colonizers, law was an essential tool of imperial domination. Law not only justified European conquest over indigenous Africans, but furthermore helped regulate the everyday existence of

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colonial subjects.3 Colonial legal institutions were typically deployed in blunt fashion, transplanted from one colony to the next without regard for local context. In fact, some of the most repressive penal codes enforced in British Africa were lifted directly from British India.4 By the early twentieth century, most of British Africa had thus installed a “body of criminal law and procedure which, in principle, differed little in the various territories and was to be inherited by the independent governments a quarter of a century later.”5 To adjudicate and implement these laws, the British installed a racially segregated system of colonial justice: English common law (hereafter common law) for the European masters and so-called Native Law for African indigenous subjects. In theory, these institutions were to operate in parallel with nonoverlapping jurisdictions. In practice, common law courts were often allowed to intercede in indigenous affairs, especially when indigenous customs were deemed “repugnant” to English sensibilities.6 Thus while both forums exercised jurisdiction over civil and criminal matters, native courts were far more constricted in their discretionary authority. More serious offenses (including political crimes) fell under the ambit of the common law. Importantly, common law courts were never meant to ensure due process; they were designed to regulate colonial commerce, adjudicate conflict between European officers and indigenous subjects, and perhaps more critically, to deliver harsh justice against anti-imperialists. To the extent that they even had the jurisdiction to do so, native courts were tasked with enforcing local law and order, mainly in communities that were far from the colonial capitol. But it was in the common law courts where the indigenous leaders of the liberation movement (including several future African heads of state) were prosecuted for crimes against the colony. Among the list of colonial convicts who would later become president were Julius Nyerere (sedition), Dr. Hastings Banda (disorderly conduct), and Jomo Kenyatta (managing an unlawful society).7 3 4 5 6

Mamdani (1996). The Indian penal code had been designed to deter indigenous uprisings (Coldham, 2000). Morris (1974). So-called repugnancy clauses determined that any inconsistencies between native and common law systems would be resolved by supreme authority of the latter. For any case involving an African and non-African litigant or defendant, the common law court became the court of first instance (Coldham, 2000). 7 Each case was tried in a common law court and ended in conviction; it is arguable that such proceedings provided an operating manual for judicial strategies of repression in the postcolonial period.

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The agents tasked to serve in colonial courts had to serve as both judge and administrator, sometimes simultaneously.8 Perhaps most telling in this regard, the courts were an arm of the administrative branch, meaning no formal separation of powers between the judiciary and the executive. In addition, native courts were almost without exception staffed by nonjurists, including local indigenous chiefs but also British colonial administrators. This was in stark contrast to the common law courts, which had stricter qualifications regarding who was eligible to practice. These regulations were ultimately enforced by Her Majesty’s Colonial Legal Service, a body of professional jurists who were tasked with upholding the common law tradition across the British Empire. These agents primarily hailed from Britain and India and were assigned to diverse locales in Africa, Southeast Asia, the West Indies, and the Middle East. For the agents who built their careers in this service, “promotion was often easier on transfer than locally, so that mobility was encouraged by the system, if not by overt policy.”9 As Twining (1966) describes: Starting as a legal cadet in Uganda, an officer could proceed to be a magistrate in Cyprus, a Crown counsel in Nyasaland, Attorney-General of Gambia, High Court judge in North Borneo, back to Nyasaland as Chief Justice, ending up as President of the Court of Appeal for Eastern Africa.

Building one’s legal career in varied, far-flung colonial territories meant that colonial judicial agents often lacked strong ties to or deep knowledge of their assigned locale. However, ignorance of local context could produce judgments that were inappropriate and incomprehensible to the indigenous population. The colonial subjects who were forced to abide by these alien judgments meanwhile had little recourse to even study the common law. Indeed, with the exception of Indian subjects, opportunities for indigenous populations to serve on the bench or even practice law in their own country remained extremely limited.10 Such exclusion was by design: The British believed that erecting local legal training institutes would radicalize the indigenous population and ultimately foment rebellion to British rule. Manteaw (2007) writes that “colonial policy deemed it more important to train engineers, doctors, and agriculturalists than lawyers because Africans who wished to read law were regarded 8 Mamdani (1996). 9 Twining (1966). 10 African solicitors who had been trained in the common law were sometimes allowed

to represent clients in common law courts, though they were never appointed to the bench. Advocates were not even permitted in native courts; plaintiffs or defendants had to represent themselves.

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as preparing for a career in politics” (p. 914). Because of these restrictions, only select members of the indigenous elite could afford to pursue legal education abroad, most often in the United Kingdom. And British fears seem to have been warranted: Among the cohort of Africans who obtained legal degrees abroad, several became prominent anti-imperialists and leaders of decolonization. These were the distinguishing features of colonial law and courts in British Africa by the mid-twentieth century: a relatively uniform set of legal codes rooted in the common law tradition, a repressive criminal justice system that fell under the jurisdiction of the executive branch and was deliberately designed to punish political dissent, and a shortage of qualified indigenous jurists. How did the leaders of independence confront these legacies in the postcolonial era? 6.1.1 Colonial Holdovers at Independence Looking at the legal landscape of postcolonial British Africa, it is easy to see more continuity than change: Common law institutions continued to be the supreme law of the land whereas native courts were either abolished outright or integrated into the common law system. While colonial holdovers are often taken as evidence of institutional stickiness, the leaders of independence were not necessarily bound by their colonial inheritances. In many instances, postcolonial regimes chose which institutions to uphold or destroy, as well as which judges to retain or dismiss.11 Which colonial legacies were deemed worthy of preserving in a postcolonial world? Certain institutions, such as those oriented toward multiparty rule, were clearly antithetical to autocratic interests and thus deliberately dismantled.12 But other institutions proved to be more malleable in the hands of emerging autocrats. In particular, the colonial legal system, with its longstanding tradition of prioritizing commercial

11 Colonial legacy arguments tend to downplay the agency of African leaders, but as Young

(2004) argues, the process of decolonization “went well beyond mere continuity. Building upon extant structures, policies and practices, the postcolonial rulers sought a rapid expansion in the mission and scope of the state.” 12 For example, efforts to establish multiparty representation in the national government that had gained momentum in the late colonial period were deliberately reversed after independence, epitomized by the nearly universal founding of one-party presidential republics. See Widner (1993).

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rights over political ones, proved especially valuable for the leaders of postcolonial regimes, many of which still relied heavily on foreign aid and investment.13 As Manteaw (2007) notes, the colonial-era “African legal profession, composed largely of wealthy foreigners” was focused on “private practice, representing rich and commercial clients, and litigating cases” (p. 916). For aid-dependent economies, upholding these legal traditions helped smooth the economic transition during an otherwise tumultuous period of political upheaval, and also served important geostrategic goals for the ex-colonizer; mainly, foreign investors would be assured that their commercial stakes in the region would be regulated by the same institutions before, during, and after independence.14 Furthermore, by continuing to uphold and build upon an internationally recognized body of law, new nation-states were able to gain instant recognition on the global stage.15 Given the myriad uncertainties associated with decolonization – especially the composition and character of the new government – any semblance of continuity with the old order could help stabilize control. Considered in context, colonial legacies were influential but not deterministic: Institutions that stymied arbitrary power were often targeted for removal, but to the extent that institutions could be re-purposed for autocratic objectives, they would be used accordingly. However, what remains underappreciated in these debates is that colonial inheritances were not just beneficial from an economic perspective – such tools also provided weapons for postcolonial repression. Indeed, for many postcolonial autocrats, colonial law and courts provided an existing infrastructure to institutionalize the process of punishment. Rather than build these institutions anew, autocrats could instead re-purpose colonial systems of repression for their own authoritarian objectives. Working within rather than around these systems was especially sensical in light of the manifold state-building tasks confronting independence leaders, most of whom had limited time and resources to consolidate control over diverse peoples and regions. Why reinvent the wheel when a repressive legal apparatus already existed? Of course, the

13 Scholars of autocratic courts have long recognized the economic advantages of granting

courts autonomy over commercial interests (Ginsburg and Moustafa, 2008).

14 While most regimes began to nationalize colonial corporations and expropriate private

enterprise by the 1970s, the early phases of decolonization were more restrained and necessarily so. 15 This helped secure the de jure notion of statehood, as explained by Jackson and Rosberg (1982).

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hypocrisy was not lost on all. As the Kenyan member of parliament Gideon Mutiso lamented to his colleagues on the floor of the National Assembly, “the whole purpose of the law which was to humiliate the black faces … how is it that up to now we have not seen the need of repealing these laws?”16,17 The decision to uphold colonial institutions in the legal sector was a contentious one for many African nationalists and a source of continuing controversy in the years and decades to come. But perhaps it was the very fact that leaders of African liberation had once been personally victimized by these institutions that they were intimately aware of their repressive potential. In light of this backdrop, it is particularly important to understand the strategic considerations that shaped when and where postcolonial autocrats chose to uphold their colonial inheritances. Which features of colonial criminal justice best facilitated postcolonial repression? How did postcolonial autocrats refashion colonial institutions to suit their agendas? I address these questions below by revisiting some of the main challenges of autocratic state-building after independence. 6.1.2 Whither “Africanization?” As decolonization proceeded apace, a key challenge of postcolonial statebuilding was finding indigenous candidates to fill the vacancies left by departing colonial officers. The campaign to indigenize the postcolonial state became widely known as “Africanization,” a phrase which came to embody the ideals of self-rule. In fact, Africanization became a popular rallying cry among autocrats seeking to justify their arbitrary seizures of power. Such thinking was used by Kenyatta and Nyerere, for example, to discredit purportedly Western norms of multiparty democracy as discordant with African values. The Africanization agenda thus became entangled with a more fundamental rebuke of imperial institutions across Africa, most famously espoused by Nkrumah’s Pan-Africanism. Ideals aside, actually implementing Africanization was a Herculean task, involving innumerable staffing decisions across all government agencies, including the legislature, civil service, security forces, and the courts.

16 Mutiso, Gideon. (1971, May 21). Motion – Repeal of Certain Statutes. Kenya National

Assembly Official Record. Hansard 23(1). 2nd Parliament, 2nd session.

17 Mutiso’s criticisms fell upon deaf ears; in fact, in the weeks following these remarks, he

was and convicted of sedition against the president. See Chapter 3.

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For the emerging autocrats of the postcolonial state, government vacancies presented unique opportunities to refashion the postcolonial state in their favor by building elaborate systems of patronage centered around their personal authority.18 The most prestigious and lucrative government portfolios were typically allocated to the autocrat’s most loyal or trusted friends, wherein bestowing such positions helped presidents generate further buy-in for the status quo. But continued access to the privileges of power was often conditional on demonstrations of loyalty. If and when allies fell out of favor, autocrats could reshuffle the cabinet or purge disloyal agents. In these ways, patronage-based strategies helped stabilize power-sharing in one-party dictatorships by regulating access to the center of government.19 However, at least one government agency seemed relatively impervious to these dynamics: the judiciary. This is particularly clear with respect to the office of the chief justice, arguably the most prestigious judgeship in the government and thus an obvious vehicle for patronage politics. Rather than bestow this position to partisan cronies, a variety of postcolonial autocrats opted instead for expatriate jurists, the latter of whom had built their judicial careers at colonial outposts across the former British Empire. Notably, the bulk of these expatriates were white Englishmen, though a select number came from India, the Caribbean, and other African countries. At a time when nearly all prestigious government positions in the postcolonial state were being Africanized along partisan lines, the judiciary largely retained its colonial identity. Figure 6.1 visualizes these patterns, revealing the extent to which postcolonial regimes employed expatriates in the years, sometimes decades, after independence. A few trends immediately stand out. First, the predominance of expatriate chief justices varied by country: Whereas Ghana and Sierra Leone immediately indigenized the bench, countries like Kenya, Malawi, Uganda, and Zambia continued to employ expatriates well into the 1970s and beyond. Second, countries that successfully indigenized the office of the chief justice sometimes reverted back to expatriate jurists, as was the case in Kenya and Uganda by the late 1960s and early 1970s.

18 Patron-client networks typically incorporated members of different ethnic and

socio-economic backgrounds who had been brought together by material inducements. See Young (2012); Bayart (1993). 19 Arriola (2009).

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figure 6.1. Timeline of chief justices in postcolonial British Africa Each row shows the composition of expatiate and indigenous chief justices for a given country, dating from the year of independence until 1990. The width of each bar represents the tenure of a given justice.

Why was the office of the chief justice a seeming exception to patterns of patronage that were being used across the postcolonial state? An oft-invoked explanation is rooted in colonial era policies. As the logic goes, the lack of educational opportunities afforded to indigenous subjects under British colonial rule led to shortages of locally qualified indigenous jurists by the time of independence. These legacies varied by region: A greater number of subjects from West Africa (namely Nigeria, Sierra Leone, and Ghana) were able to receive their legal education abroad and were later called to the English Bar; subjects from East and Southeast Africa (e.g., Kenya, Malawi, Uganda, and Zambia) had less access to such opportunities. Wherever the British had permitted the development of an indigenous legal sector, there would thus be a greater supply of indigenous jurists at independence. Ghana was a standout case in this regard: After achieving independence in 1957, the local legal sector consisted of both expatriate and indigenous jurists, including a sizable population of Ghanaians who had studied the law in the United Kingdom.20 This may

20 Among the cohort of Gold Coast subjects who had applied for overseas legal study, the

majority were accepted as members of the Honourable Society of the Inner Temple, a long-standing professional association for barristers and judges based in London, United Kingdom. Membership at one of the “Inns of Court” was required in order to be called

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figure 6.2. Court compliance rate by decade Conviction rate in political trials calculated across entire sample (Ghana, Malawi, Kenya, Sierra Leone, Tanzania, Uganda, and Zambia).

help explain why Ghana was the only country to successfully Africanize the office of the chief justice for the entirety of the postcolonial period, as shown in Figure 6.2. As the first British African territory to achieve independence, Ghana was in many ways the pioneer of postcolonial rule and, at least at the time, a beacon for other fledgling African nations to follow. But for many British officials, Ghana’s exceptionalism was a clarion call for judicial reform across the rest of British Africa. The British were particularly concerned by the lack of indigenous jurists across the continent, which would likely pose greater problems as more countries decolonized. In 1960, these challenges inspired the formation of the Denning Committee on Legal Education for Students from Africa, a British taskforce chaired by Lord Alfred Thompson Denning that was called upon to summarize the state of African legal affairs and prospects for postcolonial reform. The Committee’s main findings were summarized in a report delivered to the British parliament in January 1961, wherein Denning concluded that the central problem facing the African legal sector was the shortage of qualified manpower

to the Bar in postcolonial Africa. The exorbitant expenses of traveling and living in the United Kingdom meant international study was usually only an option reserved for members of the highly privileged African elite. See Twining (1966).

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across the continent.21 The solution to this problem, Denning argued, would be to erect local training institutes to educate African subjects in the law. This led to concerted efforts by the British government to establish common law faculties in both West and East Africa. However, many argued that these efforts came too late in the decolonization process, such that it would take several years before the first cohort of African graduates would be even eligible to serve on the bench.22 Given these challenges, it seems reasonable to conclude that postcolonial regimes continued to employ expatriates because it was the only way to keep the common law system operational. Failures to Africanize the judiciary could thus be interpreted as merely another holdover of colonial underdevelopment. Such thinking has profoundly shaped narratives of the legal sector in Africa and continues to pervade contemporary debates on judicial reform across the region.23 While it is undeniable that postcolonial African regimes often confronted considerable constraints as they emerged from colonial rule, it is worthwhile to re-examine the assumption that emerging autocrats actually wanted to Africanize the bench. In the next section, I draw on a variety of newly declassified evidence that reveal a drastically different story of judicial design in postcolonial autocracies. What these documents show is that while many postcolonial regimes paid lip service to the ideals of African autonomy, public rhetoric did not match private preferences.

6.2 dilemmas of a professionalized judiciary In an ideal world, autocrats likely prefer to packed the bench with regime loyalists. But given the constraints of professionalization in postcolonial Africa, eligibility on the bench was restricted to candidates who had already earned degrees in the common law. Postcolonial autocrats who sought to maintain a professionalized judiciary were thus required to employ jurists who met this qualification. But finding agents who satisfied 21 The Denning Committee ran a survey in 1959 of African students studying law in East

and West Africa and found incredible variation in the size of the local candidate pool. Whereas countries like Ghana, Kenya, and Uganda had several dozen students, countries like Sierra Leone and Tanganyika had fewer than ten each. Malawi, meanwhile, had a single law student. See Twining (1966). 22 Twining (1966). 23 Manteaw (2007).

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both criteria – that is, a professional jurist who was also a regime loyalist – was not always feasible in practice. This was because, for reasons cited above, autocrats faced a critical supply problem at independence. In some countries, the pool of local jurists was so tiny that only a handful of candidates were eligible to serve. Who were these local candidates? Recall that because opportunities to study the law were extremely limited during the colonial era (in large part due to the lack of local institutes for indigenous subjects to become professionalized) most degrees had to be pursued in the United Kingdom, such as the Inns of Court in London. Only the wealthiest, most ambitious members of the indigenous elite could afford to study abroad and gain the necessary qualifications to practice law. Of the privileged few, many were emboldened by these experiences and gained access to opportunities to advance the cause of self-rule. This was true of Sir Arku Korsah, future Chief Justice of Ghana, a member of the indigenous political elite who had been granted the opportunity to qualify for the English Bar during the colonial era. Korsah’s storied political career began in 1942 when he was among the first indigenous subjects to be appointed to the colonial Legislative Council. Similarly in Kenya, future Chief Justice Kitili Mwendwa, son of a paramount chief, had unique opportunities to study abroad and also had several family members directly involved in the independence struggle; his brother Ngala Mwendwa was part of the Kenyan delegation responsible for negotiating the terms of independence from British rule and later served as the Minister of Labor in the first postindependence cabinet. The typical indigenous jurist was thus a prominent member of the local economic and political establishment. On the surface, such an agent would have been an ideal candidate for court-packing. But at a time when party defections and mergers were common – as was the case during the immediate independence era when party lines were still being drawn – identifying loyal jurists could be a tricky calculation. From the autocrat’s perspective, if partisanship was unstable and true preferences remained private, the loyalties of a partisan jurist would be just as suspect as those of any other political agent. In short, the autocrat’s insecurity that copartisan politicans were privately plotting against him could easily extend to co-partisan judges. This presented postcolonial autocrats with a dilemma: Keeping the judiciary professionalized would help institutionalize the process of punishment, but doing so severely restricted who was qualified to serve, such that autocrats were sometimes unable to build their ideal bench.

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The urgency of these concerns prompted some emerging one-party regimes to lower the barriers to entry to the judiciary and thus increase the supply of indigenous jurists. However, it would still take years for such changes to have a meaningful impact on the local supply, meaning more immediate solutions had to be devised. Such measures furthermore had to be invoked cautiously and sparingly, since lowering barriers to entry to the judicial corps risked undermining its guild-like qualities, thereby undermining the professionalization of the judiciary. In sum, colonial legacies were restricting, but not in ways that conventional theories would suggest. Postcolonial governments were not irrevocably bound by colonial precedents; emerging autocrats often chose to institutionalize the process of punishment using the framework left in place by their former colonizer, which in turn restricted who was eligible to serve on the bench. Lacking access to a local pool of eligible candidates, postcolonial autocrats had to turn elsewhere. 6.2.1 Resolving the Dilemma: Employing Expatriate Jurists To overcome challenges of court-packing, autocrats of the postcolonial era adopted an unusual approach: recruiting expatriate jurists to serve on African courts. These schemes were made possible by the British government, which continued to offer financial and technical assistance to their ex-colonies well after independence. One of the main advantages of an expatriate judicial supply was its sheer size: This was a global pool of professionals who were qualified common law experts. But could foreign jurists actually be expected to cooperate with postcolonial African autocrats, especially when the jurists were white Englishman who had built their careers subjugating indigenous subjects under British rule? In short: yes. The incentive structure of these employment schemes were designed to ensure that jurists, no matter where they originated, could be induced to cooperate with autocratic interests, no matter which autocrat they were obliged to serve. The most obvious ex ante control imposed on expatriate jurists was regarding tenure. Employment contracts specified that jurists served on fixed, short-term bases, usually two year rotations. This ensured a regular turnover of jurists across the British Commonwealth, with some jurists serving in multiple African countries over the first decade of independence.24 Unlike indigenous jurists who were deeply embedded in the local 24 This system was essentially a perpetuation of colonial practices, wherein colonial officers

built their career serving at various outposts across the British Empire. In fact, the

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political and economic establishment, expatriates were literally foreigners, such that many came to the bench with little to no understanding of the political dynamics in which they were dropped. These jurists were easier for autocrats to control because of their unfamiliarity with local regime dynamics: That is, lacking knowledge of the intricacies or nuances of insider politics, especially the factional conflicts that plagued many independence regimes, expatriates were more dependent upon the incumbent for their immediate livelihood and protection. Keeping expatriates insulated from other elites was thus a convenient way to ensure that jurists remained disconnected from the autocrat’s potential rivals – and perhaps less susceptible to defection. These conditions made expatriate jurists highly desirable to the emerging autocrats of postcolonial Africa. By coming to the bench without an existing network, exacerbated by their likely shallow understanding of the political dynamics at play, expatriates often found it challenging to navigate the alien, sometimes inscrutable machinations of postcolonial regimes. This helped compel judicial obedience regardless of who was in power, since it was ultimately the incumbent to whom an expatriate owed their position on the bench. When presented with the choice between an indigenous or expatriate to fill a judicial vacancy, autocrats thus often preferred the latter under the logic that they would be easier to control. Another advantage of expatriate recruits was their relative vulnerability. Ex post sanctions were an easy way for autocrats to respond to rulings they found disagreeable. For example, autocrats who were displeased with an expatriate’s performance could summarily terminate their contract, which would require their immediate expulsion from the country. This placed expatriates in an extremely insecure position with regards to their autocratic masters, for defying autocrats could mean a dramatic exit from office and jeopardize their legal status. Although turning to the expatriate community helped expand the pool of eligible jurists, and furthermore made it possible to arbitrarily dismiss and literally expel uncooperative jurists from the country, demand sometimes exceeded supply. Shortages varied by context: It was considerably easier to recruit expatriates to serve in places like Kenya, Malawi, and Zambia, which were relatively stable countries with already sizable expatriate populations, but it was far more challenging to do so in places like Sierra Leone where extreme poverty coupled by political instability employment of expatriate jurist were arranged by the British government’s Overseas Service (the postcolonial successor of Her Majesty’s Colonial Legal Service).

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diminished the attractiveness of a seat on the supreme court, even a position as prestigious as the chief justice. In sum, that postcolonial courts continued to be composed of expatriate, mostly white jurists after independence was not simply a legacy of colonial underdevelopment; instead, it was a strategy to ensure that courts remained reliable forums of repression. Given the manifold uncertainties plaguing autocrats in the postcolonial era, expatriate jurists were easier to control than indigenous jurists and could thus help generate a more cooperative judiciary. The remainder of this chapter is devoted to evaluating these claims by examining specific episodes of executive-judicial conflict in postcolonial regimes and tracing how they motivated the recruitment, where possible, of expatriate jurists.

6.3 cross-national patterns of judicial cooperation To evaluate the claim that expatriate jurists were more cooperative than their indigenous counterparts, I now return to the repression data introduced in Chapter 4. In that chapter, my focus was whether the identity of the challenger affected their likelihood of being prosecuted; in this chapter, I test how the identity of a judge affected their cooperation with the autocrat. Expressions of judicial cooperation in political trials can be manifold, ranging from oratory statements in support of the prosecution’s case, written judgments that defend the autocrat’s legitimacy, as well as overall management of the courtroom, including who is permitted to deliver testimony as well as who is even allowed to attend the proceedings of court. For the sake of generalizability, I opt for a simple, dicohotomous measure of judicial cooperation that captures a critical moment in the judicial process: whether a judge convicted or acquitted the autocrat’s rival. I operationalize cooperation as conviction for three reasons: First, verdicts are publicly announced by the authoring judge, meaning they are explicit, definitive declarations of cooperation (or noncooperation) with the autocrat’s agenda; second, conviction is the expected and desired outcome of a political trial, a tidy resolution to the narrative that a judicial ritual is meant to convey; third, quantifying cooperation as a binary variable provides an efficient way to summarize cross-national prosecution trends. Before proceeding with the results, recall that the main sample includes observations for 2,563 individuals who were accused of crimes against

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the state in Ghana, Malawi, Kenya, Sierra Leone, Tanzania, Uganda, and Zambia during the first three decades of independence.25 Within this sample, 1,331 challengers were ultimately brought to court and prosecuted before a judge. The unit of analysis is a political trial, defined as a formal proceeding wherein a defendant is formally prosecuted in a court for crimes against the state. The outcome of interest is the verdict: whether the court convicts or acquits the defendant. Figure 6.2 shows the conviction rate by decade across the entire sample. Moving from left to right, the data reveal that the average number of convictions steadily rose over the first three decades and dropped dramatically by the early 1990s. These trends are consistent with existing theories of judicial behavior and autocratic survival: As autocratic power consolidated in the form of one-party or military dictatorship (1960s–1980s), courts grew more repressive; but as autocratic power began to break down (1990s), the conviction rate dropped.26 If my argument holds, the conviction rate of postcolonial courts should not only vary over time, but also by type of jurist. That is, we should expect to see expatriate-packed courts deliver a greater number of convictions than indigenous-packed courts. Ideally, I would test this hypothesis by comparing the verdicts delivered by expatriate and indigenous jurist for each case in the sample. But there are important limitations to the repression data that prevent such fine-grained inference. As mentioned in Chapter 4, that politically sensitive cases were specifically excluded from official law reports meant there was no official record of these trials. Data on political prosecutions was thus triangulated from a variety of archival documents, including historical newspapers and government reports. While it was possible to use these sources to derive details about defendants, it was considerably more challenging to identify the specific jurists who presided over each individual.27 To address these limitations, I use the chief justice as a proxy for the composition of the bench. This measure is justifiable on several grounds.

25 See Chapter 3 for a more thorough discussion of the data collection strategy. 26 See Helmke (2004). 27 In most historical newspaper accounts, the identity of the presiding judge was considered

less newsworthy than the identity of the defendant on trial. Likewise in the British government archives, the bulk of intelligence gathering was directed toward the political backdrop of these alleged criminal conspiracies, less so toward the judicial officers tasked with adjudicating political trials.

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table 6.1. Verdicts in political trials by chief justice-type

African chief justices Expat chief justices

Acquittal

Conviction

0.20 0.11

0.80 0.89

Perhaps most importantly, the chief justice was the highest ranking judicial office in the nation. Whoever occupied this role was thus not only emblematic of the political direction of the courts as a whole, but also responsible for whatever judgments were issued by subordinate courts. Furthermore, the chief justice was in many instances the presiding judge in sensitive political cases. Such episodes do provide a direct test of the hypothesis linking judicial identity to judicial outcomes. But even when the chief justice was not directly involved in delivering judgment against the accused, autocrats still held the chief justice accountable for the behavior of the bench. In particular, autocrats usually took up their frustration against judicial noncompliance directly with the chief justice, not necessarily the offending judge. Executive-judicial conflict was thus typically borne out at the topmost level. Furthermore, as the most prestigious judicial post in the nation, the office of the chief justice was an obvious vehicle for patronage politics. Looking at who occupied this post thus provides insight into strategies of autocratic survival in postcolonial regimes. Using the chief justice as proxy for the judiciary, the simplest analysis is a cross-tabulation of trial outcomes by chief justice type. As Table 6.1 shows, conviction rates were generally high under both indigenous and expatriate chief justices. However, the conviction rate was slightly higher under expatriate chief justices, with nearly 90% of cases ending in conviction as opposed to the approximately 80% of cases ending in conviction under indigenous chief justices. When we consider these trends over time, the results are even more intriguing. As shown in Figure 6.3, conviction rates under expatriate and indigenous chief justices trend in opposite directions over the postcolonial period: While courts led by indigenous chief justices delivered more convictions during the first decade, their conviction rate steadily decreased over subsequent decades. By contrast, courts led by expatriate chief justices issued a greater number of convictions over time, reaching a near 100% conviction rate in the 1970s before decreasing in the 1990s (when most autocratic regimes were pressured to liberalize).

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(a)

(b)

figure 6.3. Compliance rate by decade. (a) Indigenous Chief Justices. (b) Foreign Chief Justices. Conviction rate in political trials calculated across entire sample (Ghana, Malawi, Kenya, Sierra Leone, Tanzania, Uganda, and Zambia).

6.4 when professionalization and partisanship are misaligned Cross-national trends reveal that, in general, indigenous-led courts delivered fewer convictions than expatriate-led courts. To unpack these patterns, I now turn to specific examples that illustrate the tensions often faced between African autocrats and indigenous jurists. I specifically focus on episodes wherein the professionalization and partisanship of indigenous jurists were misaligned, such that the cooperation of courts could not be guaranteed. That autocrats sometimes appointed jurists with misaligned interests reflects an important reality of postcolonial court-packing: Autocrats faced considerable constraints in whom they could appoint to the bench, which sometimes resulted in tense, distrustful relations between the executive and the judiciary. Ghana: President Nkrumah versus Chief Justice Korsah As mentioned above, by the time of Ghana’s independence in 1957, the first chief justice was Sir Arku Korsah, a distinguished Ghanaian who had been of the few indigenous subjects granted the opportunity to study abroad during the colonial era, earning degrees at Durham University and the University of London before qualifying for the English Bar. Upon returning to the then – Gold Coast colony (later Ghana) with his legal degree, Korsah enjoyed a longstanding career in the colonial government, winning a seat in the Gold Coast Legislative Assembly in 1927 – one

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6.4 When Professionalization and Partisanship are Misaligned 171 of only nine indigenous subjects to do so – and winning re-election in the 1931 and 1935 general elections. In 1942, Korsah was appointed to the colonial Legislative Council. Given his longstanding record of public service and his demonstrated ability to secure votes at the ballot box, Korsah was an obvious choice for the senior-most position in the judiciary for the newly independent nation. However, relations between Chief Justice Korsah and President Nkrumah began to fracture shortly after independence. The backdrop of this breakdown was Nkrumah’s increasingly autocratic tendencies, reflecting his broader effort to consolidate power under a one-party dictatorship. Nkrumah’s attempts to centralize control not only alienated other ruling elites in the military, civil service, and judiciary, but also provoked civil unrest across the country. In response to this dissent, Nkrumah routinely invoked his extrajudicial powers of repression that were enshrined in law.28 But as his plans unfolded, Nkrumah was becoming increasingly paranoid about plots to oust him – plots ostensibly originating from without and within the regime. In 1958, for example, two leading opposition members of parliament were detained on charges of conspiring to infiltrate the military and ultimately assassinate Nkrumah. The plot prompted the passage of the Preventive Detention Act of 1958 (see Chapter 2), which allowed individuals to be legally detained for up to five years without charge or trial (with only Nkrumah himself having the power to grant early release). The Preventive Detention Act thus made Nkrumah the ultimate arbiter on the terms of punishment against those who dared question his authority. Nkrumah’s increasing powers of extrajudicial repression coincided with his growing tensions with the judicial branch.29 Tensions climaxed in 1963 after the discovery of another explosive plot against Nkrumah, this time involving members of the ruling party. Two members of Nkrumah’s cabinet and another ruling party elite were accused of attempting to assassinate the president. Among the accused were Tawia Adamafio, the General Secretary of the Convention People’s Party (CPP), H. CoffieCrabbe, Executive Secretary of the CPP, and Dr. Ebenezer Ako Adjei, Foreign Minister and founding member of the CPP. Members of the 28 For example, the Avoidance of Discrimination Act (December 6, 1957) banned political

parties that were organized along regional or tribal-based lines, which Nkrumah used to suppress opposition parties and civil protest. 29 Birmingham (1998).

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opposition were also implicated, including Robert Benjamin Otchere of the Opposition United Party.30 The state chose to file formal charges against the plot leaders (most of whom were elite insiders) and thus brought them to trial. In March 1963, Nkrumah assigned Korsah to lead a three-judge criminal court specially convened to prosecute the alleged conspirators. The lengthy trial dragged on for almost a year and involved testimony from multiple witnesses as well as courtroom confessions from implicated parties. On December 10, 1963, nearly nine months after the trial began, Korsah delivered his verdict: Two defendants (including a member of the opposition) were found guilty and sentenced to death, but three others (all of whom were members of the ruling party) were acquitted. In his ruling, Korsah argued that while circumstances surrounding the case might generate suspicions regarding guilt, none led “irresistably to the inference that the men had conspired to overthrow the government by unlawful means.”31 While Korsah’s judgment was technically sound, the logic of the theory argues that, in choosing to acquit, Korsah upended the desired outcome of the political trial: to convict and thereby condemn Nkrumah’s rivals. This helps explain the backlash which immediately followed. Less than 24 hours after the verdict, Nkrumah dismissed Korsah from his position as chief justice and ordered the acquitted defendants to be rearrested and remain in custody until further notice.32 Later that week, the ruling party rushed a bill through parliament enabling the president to quash verdicts of the special court. A month later, the government amended the constitution to empower the president to remove and appoint judges of the supreme and high courts; that same week, Ghana became a legal one-party state and Nkrumah was declared “President for Life” in the constitution.33 After assuming these new powers, in March 1964

30 New York Times. (December 10, 1963). 3 in Treason Case Set Free in Ghana. 31 New York Times. (December 10, 1963). 3 in Treason Case Set Free in Ghana. 32 According to local news reports, the specific reason cited for Korsah’s dismissal was

“failing to inform the Chief Executive of the land who assigned him the duty of trying the conspirators of the decision and judgment in the treason trial.” The Guardian. (December 13, 1963). Chief justice “Failed to Inform Dr. Nkrumah”. 33 The Observer. (January 05, 1964). Dictating democracy.

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6.4 When Professionalization and Partisanship are Misaligned 173 Nkrumah revoked the appointment of three judges of the supreme court.34 While this particular crisis was swiftly resolved, it nonetheless revealed the dangers of going to trial with an uncooperative judiciary. Korsah, a seemingly ideal agent of autocracy, proved unreliable when called upon to convict Nkrumah’s rivals. But therein lay the dilemma confronting many postcolonial autocrats: Professionalizing the judiciary helped institutionalize the process of punishment, but professional jurists were not necessarily reliable allies. Notice that, in the wake of this episode, Nkrumah did not replace Korsah with a political crony, but opted instead for careerist judge Julius Sarkodee-Adoo. When the same defendants were retried a year later on October 7, 1964 before an entirely new court under Chief Justice Sarkodee-Adoo, Nkrumah faced a more acceptable outcome: Each of the accused were found guilty and sentenced to death (Nkrumah later commuted the sentences to twenty years in prison). In short, the credible threat of ex post sanction – evidenced by Korsah’s arbitrary and dramatic dismissal – appeared to be enough to keep jurists in line. Kenya: President Kenyatta versus Chief Justice Mwendwa Like Ghana, Kenya benefited from a larger than usual supply of indigenous jurists during the colonial era, though as the Denning Committee revealed, this was an admittedly low bar. However, rather than “Kenyanize” the courts in 1963, the year of independence, the government continued to employ an English jurist as chief justice until 1968 when Kitili Mwenda became the first indigenous Kenyan to serve in that role. By the time of his appointment, Mwendwa was already a professional jurist with an expansive political network among the upper echelons of the ruling party. As mentioned before, Mwendwa came from an elite lineage: Not only was his father a paramount chief, his brothers also played active roles in the independence struggle and were subsequently bestowed ministerial portfolios and prestigious positions in Kenyatta’s cabinet.35

34 These judges were Edward Akuffo Addo (the presiding judges at the original treason

trial), Kofi Adumua Bossman, and Robert Samuel Bay.

35 His brother Ngala Mwendwa had been a member of the Kenyan delegation responsible

for negotiating the terms of independence from British rule and later served as Kenyatta’s minister of labor in the first post-independence parliament.

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On paper, Mwenda was thus an ideal candidate for the highest judicial post in the government. But his loyalties to Kenyatta were questioned during the infamous sedition trial of 1971, the first such case to be tried in postcolonial Kenya.36 Particularly alarming to the Kenyatta regime was the revelation that Mwenda was rumored to have been complicit in the conspiracy, attending several meetings at the house of one of the suspected coup leaders, Chief of the Defence Forces J. M. L. Ndolo. Because of Mwenda’s suspected involvement, he was not allowed to preside over the case; that responsibility was instead deferred to Judge Sachdeva, an Indian jurist. But as the sedition trial unfolded, an extrajudicial campaign against Mwendwa unfolded in both the popular press and on the floor of parliament. One local newspaper printed Mwenda’s picture alongside the mugshots of the accused plotters, an image that suggested Mwenda’s complicity in heavy-handed fashion.37 Protestors also attended loyalty rallies for the president holding posters with Mwenda’s name and face, accusing him of being a traitor. Such rhetoric was echoed on the floor of the National Assembly where members of parliament (likely under pressure from Kenyatta) used their platform to openly question Mwenda’s complicity in the plot while the trial was still in train. One of the Chief Justice’s lone defenders was his brother Ngala Mwendwa, then Minister of Labor, who got into such a heated exchange with another member of parliament over his brother’s innocence that the verbal fight ended in a physical brawl after the assembly session had closed.38 The campaign against Mwenda never escalated beyond informal incriminations; that is, formal charges were never filed in court. In fact, beyond an anonymous confession delivered in an out of court interview, no proof of Mwenda’s involvement ever came to light. But after months of extrajudicial harassment by Kenyatta’s cadres within the ruling party and the popular press, Mwendwa tendered his resignation as chief justice on July, 7, 1971 – just a few weeks after the conclusion of the sedition trial. Lessons of Constrained Choices What are we to make of these episodes? The theoretical framework from Chapter 2 provides some intuition. In the Ghanaian case, professionalizing the judiciary meant restricting who was eligible to serve,

36 See Chapter 3.

37 TNA: FCO 31/856.

38 TNA: FCO 31/856

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which precluded Nkrumah’s ability to arbitrarily pack the courts in his favor. However, Nkrumah ultimately overcame these constraints through ex post controls. In the Kenyan case, despite Mwendwa’s credentials as both a professional jurist and a partisan ally, his loyalties to Kenyatta became suspect due to his connections to the insiders on trial. And as in the Ghanaian example, the President reacted to this alleged treachery through arbitrary, extrajudicial harassment, which ultimately forced the Chief Justice to step down. In either case, the threat of retribution against judges was more credible when autocrats could easily replace errant jurists. However, the relatively small supply of eligible candidates would have made it difficult for many postcolonial autocrats to follow through on such threats. I discuss in the next section how autocrats were sometimes able to overcome these obstacles by working within, rather than around, their colonial inheritances.

6.5 expanding the jurist pool beyond africa Examples from Ghana and Kenya illustrate the challenges of conventional court-packing in postcolonial British Africa. In particular, packing the bench with professional jurists, even ostensibly partisan allies, did not guarantee that courts would cooperate. The underlying question, however, is whether postcolonial autocrats were conscious of these considerations when deciding how to pack the bench. To decipher the decision-cost calculus of judicial selection in postcolonial regimes, in this section I examine a variety of primary and secondary material concerning judicial politics after independence. Two important factors are revealed through this analysis: First, autocrats seem to have been generally wary of African jurists, particularly those who came from the local elite establishment; second, communications between African autocrats and the British government reveal the extent to which autocrats preferred expatriate jurists, as well as their continued reliance on the British for assistance in recruiting such agents. The most intriguing finding from these accounts is the extent to which autocrats made explicit requests to the British for assistance in recruiting foreigners to serve on the bench – even when local candidates were readily available. On this note, it is useful to revisit Kenya in the aftermath of Mwenda’s public disgrace. Exactly one week after his resignation as chief justice, Kenyatta appointed Sir James Wicks, an English expatriate, to take his

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place. Wicks was a literal holdover from the colonial era, originally arriving to Kenya in 1958 as a member of Her Majesty’s Colonial Legal Service.39 In the time since, Wicks had been promoted to Puisne Judge of the Kenyan High Court, a position which he had retained before, during, and after decolonization.40 By appointing Wicks in Mwenda’s place, Kenyatta was reverting to a long-standing tradition of employing expatriates to the bench. However, the optics of replacing a member of the Kenyan elite with a white Englishman as chief justice ran counter to the premise of Kenyanization. This approach furthermore upended the patronage logic being used to fill other prominent posts across the Kenyan state, wherein ministerial portfolios were allocated in a way to both reward allies and buy broader support.41 The awkwardness of Wicks’s appointment perhaps explains why his first judgment as chief justice (an appeal decision concerning the 1971 sedition case) was not widely publicized, even though Wicks’s ruling was highly favorable to the regime.42 That is, rather than draw attention to the case, which had previously been the subject of sensationalist news coverage and extensive discussion at the National Assembly, the final outcome of the trial was quietly resolved. But downplaying Wicks’ role in this affair made sense in light of the fact that the Kenyan government needed to strike a balance between indigenizing the postcolonial state and restoring order to one-party rule. Despite this inauspicious beginning, Wicks became the longest-serving chief justice in Kenyan history, the only to serve under two consecutive administrations (Kenyatta and his successor Daniel Arap Moi). In fact, Wicks did not step down until 1982 after reaching the mandatory retirement age, though the constitution had already been amended three times to prolong Wicks’ tenure. What explains an ex-colonial agent’s exceptional career as leader of the postcolonial judiciary? In Wicks’s case, a large part of his success arguably stemmed from his cooperative attitude with the KANU leadership. In fact, it was an open secret that Wicks would often first consult with 39 Wicks’s service across the British Empire reflects the pattern of promotion that was

typical of colonial legal agents: Prior to coming to Kenya, he had served as a Magistrate and District Judge (1948–1958) in Hong Kong, and before then as a Crown Counsel in Mandatory Palestine (1946–1947). Retrieved from www.judiciary.go.ke/about-us/ourhistory. 40 Retrieved from www.judiciary.go.ke/about-us/our-history. 41 Widner (1993). 42 Wicks’ decision to dismiss the appeal and thereby uphold the original sentence was delivered on August 6, 1971, but that the case was even heard was not revealed to outside

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Kenyatta or Moi before conducting sensitive cases to ensure that whatever transpired in court would facilitate the latter’s objectives.43 As such, the Wicks regime developed a reputation for judicial subservience to the executive, one that persisted well after Wicks retired. While Wicks’s tenure was relatively unique in historical context, the reliance of postcolonial autocratic regimes on expatriate jurists was common practice, irrespective of the regime’s political ideology or affinity with the British government. Even in Ghana, for example, where the office of the chief justice had been largely indigenized by independence, the office of the attorney general was actually held by British barrister Sir Geoffrey Bing throughout Nkrumah’s reign. Bing was a largely reliable agent of the regime and was even arrested alongside other Nkrumah loyalists during the coup of 1966.44 More broadly, Wicks, Bing, and other expatriates of their ilk offered an appealing alternative to the local supply of candidates. Like their indigenous counterparts, expatriate jurists were legal professionals: experts of the common law tradition who were eligible to serve in postcolonial courts. But unlike their indigenous counterparts, expatriate jurists were in bountiful supply and thus far easier for postcolonial autocrats to control. That is, the opportunity to recruit common law jurists from a wider candidate pool across the British Commonwealth meant that postcolonial autocrats had greater discretion in choosing who to bring to the bench in the first place, as opposed to relying on whoever happened to be locally available. A larger supply of jurists also meant that postcolonial autocrats could more easily replace uncooperative judges, making the threat of ex post sanction more credible. This was also an extremely lucrative arrangement for postcolonial regimes, since the British government provided extensive assistance in recruiting, hiring, and even funding the passage of expatriate jurists to their assignments in Africa. Recruiting Expatriates: The Role of the British Government The British government played a vital role in facilitating these arrangements. Particularly instrumental were the Africa-based members of the British High Commission who helped secure expatriate candidates to sources until a few days later. Local staff of the British High Commission noted at the time that the case barely received any local news coverage, which is why they almost missed noting it in their own records. See TNA: FCO 31/856. 43 TNA: FCO 31/856. 44 TNA: DO 153/37.

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figure 6.4. Soliciting expatriate jurists Left: Request for advertisements to be placed in British law journals seeking expatriate jurists for the Malawian bench; Right: Particulars of vancancies for said positions. Source: TNA: OD 8/369.

fill judicial vacancies. Many of these matches were conducted on an ad hoc basis, with officers of the High Commission providing real-time information about local opportunities as they appeared, as well as forwarding the curriculum vitae of expatriate jurists to African governments. To recruit candidates for these positions, the British government sometimes placed advertisements in British law journals listing the terms and conditions of such postings, including details regarding the qualifications of service, salary and duration of tenure, the duties of court, and any other relevant criteria (see Figure 6.4). British High Commissioners also routinely circulated the curriculum vitae of eligible jurists to African ministries, highlighting biographical details that made candidates potentially more suitable for an African assignment. Written records of these recruitment activities were maintained by the British Ministry of Overseas Development and reveal intriguing patterns of expatriate employment across postcolonial Africa. In many instances, these reports reveal the entire candidate pool for judicial vacancies, not just the individuals who ultimately landed in these positions. Such

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documents thus provide rare insight into the preferences of autocrats when presented with a choice among several expatriate jurists of comparable qualifications. For example, when the government of Malawi requested assistance filling vacancies for Resident Magistrates in 1968, the British put forward a range of potential candidates who were either eligible or had otherwise expressed interest in assuming the post. One such applicant was Pramesh Dharamshi Mehta, a Zanzibari-born British citizen who, after being called to the Bar at Lincoln’s Inn in London, returned to Zanzibar where he served as Assistant Administrator General and a Crown Counsel in the final years of British colonial rule. After the Zanzibari revolution, however, he left for Edinburgh where was currently practicing law as a citizen of the United Kingdom. The file submitted to the government of Malawi described him as a “quiet mannered Indian of pleasant appearance and personality” whose nomination was submitted with “excellent reports from the former Chief Justice of Zanzibar.”45 Another name put forward for consideration was IgnatiusRangel, a Kenyan-born Portuguese Goan who had been employed as the Legal Assistant to the Attorney General’s chambers in Aden as well as the Senior Crown Counsel and Legal Draftsman of the Federation of South Arabia. Rangel’s file noted that the Chief Justice of Aden described him as a “most able Magistrate.”46 Finally, the British recommended James McConnell Russell, a former member of the colonial civil service who in 1960 was appointed Deputy Adjutant General of Legal Affairs in Ghana after being called to the Bar at Gray’s Inn in London. Russell’s legal expertise had proven particularly useful with respect to the conduct of the Ghanaian Army: “He was the only legal adviser on a number of cases tried by Courts-Martial and acted as Judge Advocate in some of the cases.”47 It was further noted that he “accepted with good humour the security risks involved in holding Court in outlying areas and generally in dealing with cases which had political and terrorist implications.” Russell’s application thus concluded that he was considered a “capable and reliable staff officer,” though it was also “suggested that he drank too much and his private life was not above reproach.”48 Which of these candidates did the government of Malawi ultimately choose to hire? As it turned out, none. In a telegram dated March 19,

45 TNA: OD 8/369.

46 TNA: OD 8/369.

47 TNA: OD 8/369.

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1968, the government of Malawi sent a reply to the Minister of Overseas Development stating their regrets that none of the proposed candidates were deemed suitable. While the telegram did not offer an explanation for the blanket refusal, we can speculate as to why. With regards to the first two candidates, their ethnicity likely played a role: Postcolonial autocrats often preferred white over non-white expatriates. In fact, such sentiments were explicitly confirmed following a meeting between the British High Commissioner and the Chief Justice of Malawi Sir Frederick Southworth, himself a white Englishman. As Southworth explained to the Commissioner: “Nigerian lawyers who have been given these posts in Malawi have made themselves extremely unpopular by the arrogance in their attitude to the native population. He told me that Dr. Banda in particular is very keen to have lawyers from England, Rhodesia, and South Africa – in that order!”49 These racial biases would become recurrent themes in recruitment patterns, as will be discussed below. But demands for white jurists could not always be satisfied. One white applicant who was actually offered a position by the Malawian government, the Irish Commandant Patrick Joseph Liddy, had to withdraw his candidacy in light of irreconcilable “domestic considerations” (his original application had noted that his wife and children were emphatically opposed to relocating to Malawi).50 With regards to the Englishman Russell, the Malawian government was likely unenthusiastic about employing a jurist with a known reputation for alcoholism and other disreputable behavior. Regardless of motive, the fact that the Malawian government dismissed many of these candidates out of hand reveals how discriminating they were when it came to expatriate recruitment, which is particularly striking in light of the constrained choices they faced at home. In the end, the Malawian government was ultimately able to secure several expatriate magistrates by the end of 1968, as shown in Table 6.2. Most of the expatriates were English or Irish. Some of these jurists were

49 TNA: OD 8/369. 50 Liddy’s candidacy came highly recommended by the British Overseas Development

Ministry: “At interview, Commandant Liddy probed to be a neat, alert, military type with a good personality and he impressed the interview board as being very suitable for appointment as a Magistrate in Malawi. In the Army his work has been on legal advice and prosecutions, with some service as a Judge-Advocate. His reports are first class.” See TNA: OD 8/369.

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table 6.2. Resident magistrates in Malawi, 1968 Name Col. H. Drury D. S. Davies L. Weston J. Tomlinson R. M. Hogan A. Banda N. S. Jere

Previous occupation Barrister Solicitor Barrister Solicitor Solicitor Barrister Barrister

Nationality British British British British British Malawian Indian

Date of birth

Terms of service

1899 1907 1909 1929 1939 1936 1938

overseas contract overseas contract overseas contract overseas contract overseas contract Local Local

Source: TNA: FCO 45 772.

also quite aged,51 such as Col. Drury who was nearly seventy years old.52 But seniority on the bench might have been seen as an asset: Older jurists were likely to be more conservative and thus less inclined to make waves. Furthermore, many older candidates were themselves former agents of colonial rule, meaning they had extensive experience working on far-flung assignments for various political masters. British Attitudes: Reluctance and Skepticism Many postcolonial governments thus actively recruited expatrite jurists at every level of the judicial hierarchy. The benefits of these arrangements were manifold for postcolonial autocracies, including gaining to a global pool of pliable jurists. But British attitudes toward these arrangements were not as clear. In some cases, postcolonial governments had to persuade British officials to cooperate. This was the case in 1964 when Sierra Leonean prime minister Sir Albert Margai reached out to the British government for their assistance in recruiting a new chief justice. Declassified communications between Margai and members of the British High Commission indicate that Margai secretly sought an expatriate jurist willing to serve on a short-term appointment, preferably for one to two tours.53 51 Describing the profile of a typical expatriate jurist, the British High Commissioner of

Uganda wrote: “They are usually in the region of 50 years of age on appointment and retire at age 72 years.” See TNA: OD 8/371: Judges Uganda 1967-1969. 52 The Judicial Service Commission of Malawi noted that they were “impressed” with Drury despite his age, stating he “does not look his years and is mentally alert with an agile mind.” Though they did request a formal medical examination before offering the appointment to ensure that Drury would have been able to weather the local climate. See TNA: OD 8/369. 53 This request was also highly confidential. In discussing a possible recommendation, the Commonwealth Secretary stressed that Margai has “asked us to keep this question secret,

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The request intrigued British officials, especially considering that the current Chief Justice Sir Salako Benka-Coker was a Sierra Leonean national. As one British official wrote, it would seem “strange if an independent country like Sierra Leone, which already had an African Chief Justice, should take what would seem to be the retrograde step of appointing a European.”54 The timing of this request was also puzzling to British officials, since by this moment, most of former British Africa had either declared independence or was about to decolonize. Against this backdrop, maintaining an expatriate judiciary seemed to directly contradict the ideals of African autonomy and self-rule. The British High Commissioner of Sierra Leone summarized his concerns as follows: We wonder whether the Sierra Leone Cabinet are fully seised of the political embarrassments (both in Sierra Leone itself and in the wider African context) which could ensue not only from the fact that a white face was displacing a black, but also in relation to a possible case … which might fall to be decided by an expatriate Chief Justice on material presented by an expatriate U.K. AttorneyGeneral.55

As this quote suggests, the optics of “white judges in Black Africa” were highly perplexing to the British, especially in a country like Sierra Leone which was fortunate enough to have locally qualified jurists who were eligible to serve. One obvious candidate for the position was S. B. Jones, a Sierra Leonean jurist who had already served as presiding chief justice on a number occasions.56 When the British raised the option of appointing Jones, Margai immediately vetoed the suggestion on the grounds that Jones was too “young and needed more experience.”57 When pushed further, however, Margai finally admitted that he did not actually trust Jones. During a confidential meeting between Margai and the British High Commissioner stationed in Freetown, Margai described a recent “head-on clash between the executive and the Judiciary” stemming from a lenient ruling Jones delivered against on of Margai’s opponents.58 The British privately noted that while Jones had technically acted in accordance with the law, he had nonetheless “exercised his powers in a way calculated to cause the maximum embarrassment to the government.”59,60 As implied

since he said that none of his colleagues in the Sierra Leone Cabinet know of his enquiries, and grave damage would result from a leak” (TNA: OD 8/71). 54 TNA: OD 8/71. 55 TNA: OD 8/71. 56 TNA: OD 8/71. 57 TNA: OD 8/71. 58 TNA: DO 195/248. 59 TNA: DO 195/248. 60 Executive-judicial distrust reflected broader patterns of conflict among the ruling elite in Sierra Leone. In particular, the Creole-dominated legal sector was often at odds with of the more populist factions of the independence movement (Cartwright and Cox, 1972).

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here, the “embarrassment” of a rebellious bench could be far greater than the unsavory optics of a white judge leading an African judiciary. The British thus began a concerted effort to assist Margai in finding a suitable replacement for Jones, soliciting expatriate candidates primarily from England and Ireland. While the search for an expatriate chief justice ultimately failed in Sierra Leone, this was not due to lack of trying; the British were simply unable to secure a candidate that was both willing to assume the position and suitable to Margai. Margai seemed especially resistant to the idea of a non-white expatriate serving as chief justice, especially an African national. For example, when the British suggested bringing in a Nigerian, Margai apparently “recoiled in horror at the idea.” As the British High Commission suspected, it was “far better go for a white face in the shortterm” rather than a Nigerian who “would be viewed as a bushman by the Athenians of Africa.”61 Other African governments proved more willing to settle for nonwhite expatriates. This was the case in Uganda where, due to the lack of foreign candidates willing to take positions on the Ugandan bench, President Milton Obote settled for a Nigerian Chief Justice during the first decade of independence. From the chief justice downward, every member of the Ugandan High Court was employed on a contractual basis, meaning their positions were short-term. When these contracts were due to expire in the late 1960s, Acting attorney general of Uganda Dr. S. J. Luyimbazi-Zake visited the British Overseas Development Office in London, United Kingdom, and submitted an informal request to extend the program of employing expatriate jurists, but with preference for English over African nationals. While the attorney general framed his request as a desire to “strengthen the link [between the Ugandan and] British legal system,” British officials had reservations about “increasing the number of palefaces on the High Court bench, which conspicuously lacks an African Ugandan.”62 The initial round of correspondences among British officials treated Uganda’s request as a problem of supply: “in the absence of suitable local candidates, they have of course no

Much of this tension was due to the fact that Creoles had aligned themselves with the British during the colonial era, thereby receiving educational and economic privileges not shared by the rest of society. 61 TNA: DO 195/248. 62 TNA: OD 8/371.

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choice but to turn elsewhere for them.”63 However, contrary to the Ugandan government’s claims, there seemed to be local candidates who were at least nominally qualified for judicial service. As one British official remarked, “I would have thought that at least one African Ugandan, Michael Kawalya-Kagwa, had the necessary ability but … his appointment as an Acting Judge was revoked for reasons which have not been publicly explained.”64 What may not have been evident to British officials at the time was the fact that Michael Kawalya-Kagwa was precisely the kind of judicial candidate whose political loyalties would be regarded with suspicion. First, Kawalya-Kagwa came from a wealthy political family that enjoyed ties with members of the upper echelons of the ruling elite.65 Second, Kawalya-Kagwa was a former Chief Minister of Buganda, the subnational kingdom that had formed an uneasy coalition with the Obote regime in the lead-up to independence. After years of escalating tension, the OboteBuganda alliance effectively disintegrated when Obote’s men staged an armed attack on Bugandan king Edward Mutesa’s palace in 1966, forcing the latter into exile. While this violent seizure forced many Bugandans to submit to the Obote regime, the wounds of this conflict were still raw in 1967 when Ugandan government officials submitted their requests for English jurists. Framed in this light, it would have been injudicious of Obote to appoint a Bugandan like Kawalya-Kagwa to serve as Chief Justice; better to relegate Kawalya-Kagwa to the Industrial Court, which had no jurisdiction over political trials.66 As these examples suggest, demand for expatriate jurists may not have been due to the lack of locally qualified agents, but rather the belief that expatriates would be easier to control. However, as the contrasting experiences of Sierra Leone and Uganda suggest, not all autocrats were successful in recruiting foreign jurists. Rather, the success or failure of court-packing strategies in postcolonial Africa could crucially depend on the ability of the British government to meet African demand.

63 TNA: OD 8/371. 64 TNA: OD 8/371. 65 His uncle Apollo Kironde had been the first Ugandan ambassador to the UN and his

cousin (also named Apollo Kironde) was the African to pass the bar after reading law at the Middle Temple. See TNA: OD 8/371. 66 In 1971, under the brutal reign of Idi Amin, Kawalya-Kagwa was found burned to death in the wreckage of a still-smoldering car in the middle of Kampala. See TNA: OD 8/371.

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Evidence indicates that the British were not completely oblivious to local dynamics at play. Commenting on the Ugandan case, one official observed that English judges who were “unaccustomed to African conditions” would be more likely to “accept with equanimity the fact that constitutional issues and “political offences” would be deliberately kept from them.67 Such circumstances were seen by some as tolerable since the mere presence of English judges could “raise the prestige of the bench as a whole and would help to maintain the tradition of judicial impartiality at least in respect of nonconstitutional and nonpolitical cases.”68 Perceptions of judicial impartiality benefited British interests insofar as they “cast a cloak of respectability” over an arguably autocratic legal system, which might further British commercial interests in the region.69 The British High Commissioner in Uganda was explicit in this regard: “the maintenance of efficient and incorruptible justice in civil actions will be of great benefit to British commerce, the more so since these assets are on the wane outside the court-room.”70 Continuing the legal partnership between Britain and Uganda could thus be a way to promote foreign investment in the latter, regardless of whether these institutions were also being used to repress local dissent. That the British saw both political and economic benefits to upholding these arrangements is consistent with other aid and investment projects of the postcolonial period. But what is truly striking in these now-declassified government reports is the extent to which the British backtracked on their original position. That is, while initially resistant to the idea of too many “pale faces” in the African judiciary, the British were quickly persuaded by arguments that expatriate jurists could serve as agents of postcolonial law and order. Autocrats who portrayed their requests as essential for political stability were thus better able to cultivate cooperative judiciaries. 6.5.1 Expatriate Perspectives from an African Bench And what of expatriate jurists themselves – how did these agents perceive their role in African courts? Recall that the typical expatriate jurist was a male British national, over 60 years old, and had a background in colonial legal service. Why would these actors want to work on an African bench? For some, it was an opportunity to advance their career. As one British High Commission remarked: 67 TNA: OD 8/371.

68 TNA: OD 8/371.

69 TNA: OD 8/371.

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70 TNA: OD 8/371.

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There is keen competition for these appointments amongst Senior Counsel who, having been unsuccessful in the competition for appointment as Judge of the High Court or not having built up a sufficiently renumerative private practice, wish to complete the later years of their career in a reasonably senior position in the legal profession.71

Indeed, for many British jurists, the benefits of serving on a postcolonial court in Africa were greater than what could be achieved in the United Kingdom. Such sentiment was reflected in the writings of W. H. Goudie, an Englishman who served as a High Court judge in Uganda in the late 1960s. Goudie’s experience – particularly the ease of his transfer from country to country – was typical of expatriate jurists across the British Commonwealth. In fact, Justice Goudie had built his entire legal career as an expatriate officer in Africa, beginning in 1948 when he joined the Colonial Legal Service as a magistrate in Kenya. Upon retiring from the Colonial Service in 1966, Goudie secured a two-tour contract with the Uganda government arranged through the British Ministry of Overseas Development.72 After assuming a spot on the Ugandan High Court, Goudie wrote a letter to the British Home Office that spent more time musing on his social standing than his actual judicial duties: “as Judges we are extremely well looked after … We get invited to everything and enjoy a good social position in the community, we also get quite a few ‘perks’ such as an official driver and Judges’ Lodgings in some parts of the country.”73 Goudie seemed particularly excited by his “extracurricular” activities: “I am enjoying life tremendously AND have managed to catch a Nile Perch and see some interesting parts of the country. Just before Christmas I went to Moroto … to ‘show the flag’ for a week … A wonderful experience that week.”74 Fishing exploits aside, a judgeship in Africa allowed many expatriates to advance their professional and social standing in ways that would have been otherwise impossible in their home countries. Such was the case for John Coldwell Griffiths, a former member of the colonial service whose career ultimately spanned 45 years and seven colonial and postcolonial regimes.75 Like others of his professional standing, Griffiths began his overseas career as a colonial district officer in British India, 71 TNA: OD 8/371. 72 TNA: OD 8/371. 73 TNA: OD 8/371. 74 TNA: OD 8/371. 75 Griffiths had been a member of the Indian Civil Service from 1937–1948; the administra-

tive and judicial services of Malaya from 1951–1954; Singapore 1954–1956; Northern Rhodesia 1956–1964; Southern Rhodesia 1965–1967; Malawi 1968–1970; and Hong Kong 1970–1982. See Griffiths (1985).

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performing occasional magisterial functions as duty called. But as noted in his unpublished memoir, Griffiths discovered that he could prolong his overseas career by specializing in the law: “all over the world judges and magistrates seem to have longer working lives than ordinary folk.”76 Luckily for Griffiths, it was relatively straightforward for district officers to become eligible for judicial service, though he nonetheless noted his “initial scorn at having to become ‘legally qualified.’”77 In fact, earning these qualifications was relatively easy considering that Griffiths was able to apply to the Middle Temple in London and study the law while still presiding over his duties as a district officer in Northern Rhodesia. After two years of mostly remote study, he was called to the English Bar in 1963 and became a Resident Magistrate in Northern Rhodesia. Griffiths’ status only advanced in the postcolonial period. Following a short tour as a Resident Magistrate in Southern Rhodesia, in 1967 he was offered one of two Senior State Counsel posts in the Ministry of Justice of Malawi. Griffiths observed that in the Malawian legal sector, many of his colleagues were holdovers from the colonial era, including British expatriate Brian Roberts, then Attorney General and adviser to President Banda. Griffiths’ reflections on the dynamics between expatriate and indigenous jurists are worth quoting in full: We lawyers mingled black and white, being distributed among ourselves as state counsel magistrates, and later as judges, illustrating the benefits of the legal education that I had shared with them in the Inns of Court in London. Some of the black lawyers hailed from West Africa or the West Indies; shall I say that the turnover among them was about the same as that amongst us white expatriates. Native Malawians occupied some of the key posts, of whom the Secretary of the Judiciary worked closely with me and lived next door. Local appointees to posts like those of magistrates or judges had a more difficult row to hoe than we had as expatriates, in that they were more exposed to a number of pressures. All in all the judicial system remained essentially English and was worked harmoniously by a wide range of differing personalities, and I found little difficulty settling in.78

In this passage, Griffiths reveals several features of the Malawian system that were common to legal sectors of postcolonial British Africa. First, he indicates that most of the leading legal positions were occupied by expatriates, specifically British nationals and West Africans. Second, Griffiths was sensitive to the fact that indigenous Malawians were under greater pressures than their expatriate counterparts, though he seemed

76 Griffiths (1985), p. 200.

77 Griffiths (1985), p. 200.

78 Griffiths (1985), p. 214.

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largely indifferent to these disparities and “found no difficulty settling in.”79 This indifference is illuminating – indifference implies disconnect, which comports with the argument that expatriate jurists were less embedded in local politics and thus less motivated by such concerns. How did Griffiths regard his own position on the bench? That is, in whose interests did he ultimately serve? In his own words: “politically, the judiciary was out of the mainstream of events,” and in those rare instances when he would be called upon to adjudicate sensitive questions, “the court had served, as such cases often do, to defuse the situation and restore a balance.”80 This theme recurred throughout Griffiths’ memoir – the idea that the court’s primary responsibility was to maintain the status quo, not to hold power accountable to the law. Griffiths further noted that, judges often received their directives from the chief justice, who “took care to keep in touch with his magistrates on the ground and the administration at the centre was sound. Such back up from the headquarters was encouraging and took much of the sting out of the remoteness and isolation.”81 The isolation of expatriates in political and sometimes physical terms had important implications for how judicial agents perceived their duties on the bench. On this note, it is useful to return to Justice Goudie, the British jurist who had earlier extolled the virtues of serving as a High Court Justice in Uganda. As mentioned before Goudie had been afforded many luxuries in Uganda, including a house on a private compound, a personal driver, and government-arranged weekend trips to the countryside. Goudie thus led a privileged but relatively sheltered existence during his tenure in Uganda. With this backdrop in mind, consider the following letter he sent to the British High Commissioner, wherein Goudie described cases of the Ugandan government superseding the authority of the judiciary: “now and again someone we have discharged finds himself re-arrested and state-detained under Emergency Regulations, but provided this is not a regular procedure I think one must accept that this is not our business.”82 Not only did he seem relatively unbothered by such interference, he further insisted that “I feel at present I would be happy to stay as long as I am wanted, work-wise there are no signs whatever of any desire to pressurise.”83

79 Griffiths (1985). 80 Griffiths (1985), p. 214. 82 TNA: OD 8/371. 83 TNA: OD 8/371.

81 Griffiths (1985), p. 250.

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On the surface, that Goudie saw some of his own rulings deliberately ignored by the government and yet claimed no political pressure had been put against him seems to be a contradiction. But digging further, Goudie’s writings suggest that he internalized his mandate as a servant of power. Reflecting on the state of affairs in Uganda, he noted, “there are a few signs of underlying unrest by some disgruntled supporters of the ex-Kabaka,84 but generally speaking I think people realise that the days of Kingdoms are over and that for Uganda to prosper they must achieve unity, which Obote is always plugging.”85 Goudie was here propounding the logic put forth by the Obote regime – that dissent could and should be suppressed for the sake of national unity. Such thinking had been recently used to justify the arbitrary detention of political opponents without trial. This sentiment became more explicit following the publication of a controversial newspaper editorial on the Ugandan judiciary in May of 1969. In a piece published by The Daily Telegraph, a British paper that had local distribution in Uganda, an unnamed editor opined on the recent appointment of two English county court justices to the Ugandan High Court. A clipping from the article was circulated among various divisions of the British High Commission and Overseas Development Offices, eventually making its way to the Lord Chancellor’s Office in the United Kingdom. British officials were particularly concerned about the following passage: The two-year secondment [of expatriate jurists] has been arranged by the Lord Chancellor, who was asked by the Ugandan government for “real English judges” … Neither of them will have a particularly easy time. The rule of law in Uganda is periodically compromised by emergency legislation. I hope they will at least avoid the fate of a Ugandan magistrate, Paul Mpungu, who was daring enough to acquit a man charged with displaying the colours of an opposition party. He has been in detention since August, 1967.86

The critical, somewhat condescending tone of The Daily Telegraph provoked the ire of expatriate judges in Uganda, particularly the notion that they were less “daring” than their African counterparts. Writing directly to the Lord High Chancellor, Goudie defended his complicity with the Obote regime as entirely legitimate: “I am certain you will agree that Orders made under Emergency Regulations constitute Acts of State and that no judge whether he be a seconded English judge or

84 The former monarch of the subnational Kingdom of Buganda. 86 TNA: OD 8/371.

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an expatriate or a local judge has any power to question such an order intra vires the Regulations and duly executed.”87 As Goudie’s statements made clear, his main concern was the damage this article would have on his professional reputation. Although he suggested pursuing libel charges against The Daily Telegraph, in the end, the British government opted to let the matter rest. After all, the publication did not generate many waves in Uganda and Obote himself seemed largely indifferent to the discourse. Yet, Goudie’s reaction is telling here, for it suggests that expatriate jurists had internalized a logic of decision-making that justified judicial subservience to autocratic interests. In short, cooperation of the courts was justified during times of national emergency, a notion oft-invoked by autocrats to justify seizures of power and suppression of dissent.

6.6 conclusion Evidence presented in this chapter reveals how autocrats of the postcolonial period saw advantages to working within, rather than around, their colonial inheritances. In particular, the preservation of common law traditions enabled autocrats to recruit expatriate jurists from across the British Commonwealth. Such agents proved to be generally cooperative in times of crisis, regardless of whom autocrats brought to trial. Crucially, the request for expatriates to the bench was not merely driven by the limited supply of local jurists: Even when given the choice between an indigenous and an expatriate judge, many autocrats opted for the latter, much to the chagrin of the British government. Among autocrats who explicitly demanded expatriate jurists, however, the search for willing and qualified candidates could be long and in some cases fruitless. And the seeming hypocrisy of recruiting white Englishmen to serve on African courts could provoke backlash both at home and abroad. A variety of domestic and international circumstances could thus lead to designs that fell short of an autocrat’s ideal bench. These findings run counter to conventional narratives of postcolonial reform that typically frame the development of African institutions as a story of limited resources and over-dependency on external support. However, I provide evidence in this chapter that the persistence of colonial holdovers could be a choice: Facing considerable constraints in their

87 TNA: OD 8/371.

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ability to secure eligible candidates for the bench, emerging autocrats of the postcolonial period preferred to recruit from a wider selection of expatriate jurists who were not only qualified to serve but also easier to control. This counter-intuitive approach to court-packing meant foregoing the opportunity to reward partisan allies with prominent positions in the judiciary, but for insecure autocrats, it could help cultivate a more cooperative bench.

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7 Conclusion

Leviathan is a creature of the Law; it is by law he lives, and laws and regulations are both the substances of his being and the base of his power. The strong man … can build up an empire, but unless the framework be fashioned out of law his empire will last no longer than his strength. —J. S. Furnivall, Fashioning of Leviathan: The Beginnings of British Rule in Burma Where there is law there is injustice. —Leo Tolstoy, War and Peace

In November 2016, the journalist Masha Gessen published an essay in The New York Review of Books titled “Autocracy: Rules for Survival.”1 The first rule is ostensibly simple: “Believe the autocrat. He means what he says.” Yet, the idea that we should take the autocrat’s word at face value actually runs counter to conventional wisdom regarding authoritarian rule. More often it is presumed that whatever autocrats say should be taken with a grain of salt; that bombastic rhetoric is mere posturing; that actions are more meaningful than words. Such thinking overlooks an important reality: The autocrat’s words often carries the weight of the law. Sometimes these words are directly articulated via executive orders or formal proclamations. Other times the

1 Gessen, Masha. (November 10, 2016). Autocracy: Rules for Survival. The New York

Review of Books. Retrieved from http://www.nybooks.com

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autocrat indirectly communicates preferences to other agents, the latter of whom are the ones ultimately responsible for actualizing the autocrat’s agenda through legal or extralegal channels. In any case, the enforcement of the autocrat’s law is an intrinsically violent act, wherein violations thereof entail threats of physical sanction. As Robert Cover observed, “law is never just a mental or spiritual act. A legal world is built only to the extent that there are commitments that place bodies on the line.”2 What this suggests is that by turning our attention to the legal and judicial dimensions of persecution and punishment, we can explore critical questions that lie at the core of autocratic governance. This book has attempted to deal with such issues by examining historical and enduring trends of autocratic legitimation, specifically the ways in which autocrats have expanded, concretized, and fortified their power by legal and judicial means. In particular, by “reading” the rituals of court, both literally and metaphorically, I have scrutinized the content of the law and the terms of judicial discourse as performances of autocratic power. My theoretical and empirical inquiry have orbited around the notion of a political trial: a judicial proceeding that embodies many essential questions of autocratic rule, including why autocrats institutionalize the process of punishment, strategies of repression more broadly, and methods of ensuring that the agents of autocracy cooperate with the autocrats’ agenda. Motivated by such questions, I have attempted to uncover how strategies of repression become institutionalized in autocratic regimes, which speaks more broadly to how power is performed, interpreted, and contested in oppressive settings.

7.1 main findings My main argument has been that courts provide a unique forum for autocrats to institutionalize the process of punishment, wherein institutionalizing punishment serves a broader goal of enforcing order and obedience to autocratic rule. How do these outcomes ultimately arise? To unpack these processes, my theoretical framework centered on the notion of a political trial: a judicial ritual that invokes the ceremonies of court to target a political adversary for elimination. This ritual adheres to a routinized sequence of legal motions and testimonies wherein the state

2 Cover (1986).

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attempts to establish a criminal case against the accused before a judge. Throughout the book, I have shown that the goal of this proceeding is not to provide due process for the accused, but to illustrate the consequences of defying the autocrat’s rules. The power of this performance lies in its formal ceremony, one that places a political rival on their defense. Doing so helps transform an otherwise uncertain and amorphous threat into an explicit and concrete enemy that can be dealt with through the machinery of criminal justice. However, whether this enemy is genuine remains to be seen; more important to the autocrat is that the source of the threat has been shown to be identified and contained. The demonstrative power of a trial is why courts are often attended by live audiences who do not directly participate in the case but are still able to witness their proceedings unfold in real time. Inviting observers to court furthermore ensures that observation becomes a communal act. In fact, my findings have shown that communal observation (where members of a crowd observe the trial as well as each other) is often a key component of the judicial process because it helps generate perceptions among individuals that others already accept the narrative of the trial. This can help enforce wider obedience to autocratic rule since beliefs are stronger when they are assumed to be shared. Bringing conflict to court enables autocrats to inflict punishment against specific rivals and restore broader confidence in their authority. But is this approach more useful in some contexts over others? My findings reveal that a judicial strategy is particularly advantageous when regime cohesion is under strain, which is more often the case when autocrats face threats from insider elites who are best positioned to undermine regimes from within. In such cases, the challenge facing autocrats is that the source and scope of insider conspiracy is often uncertain. Since autocratic regimes tend to lack transparency and insider elites have incentive to mask their true intentions until they are ready to strike, autocrats may find it difficult to distinguish between friend and foe. A trial is useful in this case by enabling autocrats to pinpoint blame on a specific rival and illustrate to an audience of other insiders the consequences of defying autocratic authority. Set against the uncertain source and scope of threats from within, a trial considerably simplifies the messy reality of insider conflict into black-and-white terms, drawing a clear line between right and wrong, or between allies and adversaries

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(irrespective of whether these lines are accurate). A trial is thus a means to enforce discipline within the ruling group and shore up support for the incumbent. Using both qualitative and quantitative inference, I demonstrated that insider elites are indeed more likely to face prosecution than outsider elites. I further found evidence to suggest that autocrats do make different threat assessments with regards to insider and outsider elites, the latter of whom pose less immediate risks to regime cohesion and are thus less likely to be taken to trial. The final piece of the theoretical puzzle concerned the judiciary, or how autocrats ensure that judges actually cooperate with their repressive agendas. To understand executive-judicial relations in autocratic regimes, I examined the trade-offs autocrats face with respect to judicial design: Professionalizing the judiciary helps institutionalize the process of punishment, but doing so also limits the ability of autocrats to place their preferred candidates on the bench. To overcome this dilemma, I find that autocrats employ a variety of ex ante and ex post methods to control the judiciary. In some cases, this involves the implicit or explicit threat of violence against judges. My findings make several theoretical and empirical contributions to the study of courts in autocratic regimes. First, focusing on the judicialization of punishment helps expand understanding of the institutions of autocratic survival. Second, these findings speak to broader policy debates regarding the challenges of judicial reform in developing contexts, wherein scholars, policymakers, and political commentators alike have wondered how judicial independence or the rule of law can be established, defended, or restored. Such thinking presumes that current trends represent a perversion of democratic norms. This is most clearly reflected in the language used to describe this phenomenon, wherein democracy is “backsliding” and laws are being “hijacked” for autocratic objectives. Such discourse suggests that courts have been robbed of their democratic purpose – mainly, to restrain arbitrary power by authority of the law. However, as explained throughout this book, to assume that courts are inherently democracy-enhancing overlooks the possibility that they were designed with autocratic intent. It is telling here that backsliding trends have drawn greater attention in younger, less established democracies. Given that these are also contexts where

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governments have struggled to overcome their autocratic legacies, the erosion of human rights and civil liberties may be less of a deviation from the norm and more of a reversion to the politics of old.3

7.2 avenues for future research A central aim of this book is to provide a simple, tractable framework for analyzing autocratic repression through a judicial lens. To this end, I have often opted for parsimony in theorizing how the process of punishment is institutionalized through the law and courts. However, some of the key findings of this study raise intriguing theoretical and empirical questions that would require complicating or building upon the core theoretical assumptions of the main theory. While beyond the scope of this inquiry, I outline some of these questions below and propose potential pathways for future research. 7.2.1 The Role of the Military While courts occupy center stage in the theoretical framework, the military remains an important background player throughout the book. This was particularly true in the context of postcolonial Africa where the military often played an inordinate role in staging and preventing coups. On the one hand, the disciplinary dimensions of autocracy as outlined in this book readily apply to the military because this organization is fundamentally concerned with establishing obedience to authority through institutionalized hierarchy. In fact, given the outsized role of the military in staging successful coups in Africa, it reasons that the military would have been especially sensitive to the threat of insurrection. On the other hand, the military can also have an awkward relationship with the civilian justice system, particularly when civilian and military courts operate as separate silos with nonoverlapping jurisdiction, each with their own set of rules and regulations.4 Based on the main theory, it reasons that these institutional differences produce different types of judicial rituals, perhaps targeted for different types of audiences. However, as discussed in Chapter 4, civilian and military courts sometimes share

3 Ginsburg and Huq (2018).

4 Pereira (2005); Moustafa (2014).

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meaningful similarities with regards to the delivery of political justice: In both cases, defendants are subjected to formal, routinized procedures of adjudication that explicitly link crime and punishment. But the extent to which such patterns generalize deserves further scrutiny. That is to say, understanding the similarities and differences between civilian and military courts, as well as their implications for judicial outcomes, represent important avenues for future research. 7.2.2 Different Phases of Autocratic Survival The empirical focus of the book has been postcolonial British Africa, where it has been shown that judicial and extrajudicial strategies of repression were part of a much larger effort to consolidate power on the national stage. But how well do these patterns of punishment extend beyond the early stages of autocratic consolidation? It is useful here to unpack why the theory resonates so strongly with the experience of consolidating regimes. Recall that a judicial strategy of repression is particularly useful when autocrats confront threats to regime cohesion. So describes the early days of autocracy, a time when power is still consolidating and rulers are more insecure. Such conditions are ripe for insurrection as various elites vie for a position at the top. In an attempt to defuse such threats and preempt future challengers, autocrats can invoke the proceedings of a political trial to build narratives of conflict that reinforce obedience to authority. However, this does not necessarily mean that the theory applies only to the early years of regime-building. It reasons that as regimes mature and autocrats age, threats to regime cohesion can reemerge and can even trigger regime breakdown. Under such conditions, judicial and extrajudicial strategies may adapt to confront new types of threat and construct new narratives of power. While a full exploration of these pathways of punishment remains beyond the scope of this book, the logic of the argument may ultimately travel to other contexts where threats to regime cohesion are likely to arise. 7.2.3 Judicial Strategies in the Information Age Another avenue for future research is how changes in the information environment may affect judicial strategies of repression. This book has focused on contexts where autocrats are largely able to control the dissemination of information such that they can dictate how narratives

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about power and conflict are more broadly shared. For the autocratic regimes of postcolonial Africa, this was a relatively straightforward endeavor. The stifling of opposition media shortly after independence ensured that information was often dictated from the top down. Media strangleholds granted autocrats considerable leeway to control how news was disseminated to the general public, which made it easier to establish shared beliefs and common knowledge about power. With respect to political trials, regimes that exercised monopolies on information were better able to control how the narratives of court were broadcast to wider audiences.5 In recent years, however, the ability of autocrats to dictate, control, or censor information has been challenged on a variety of fronts. Some of these developments began with the “third wave” of democratization, a period of political liberalization that swept across many parts of Africa, Latin America, Eastern Europe, and Southeast Asia and resulted in the breakdown of many single-party and military dictatorships that had been in power for decades. Across much of Africa, the liberalizing wave led to the dismantling of state monopolies over the media sector and the emergence of a new independent news organizations.6 Dramatic changes in the local media landscape coincided with the rise of new digital information technologies, the latter of which have considerably complicated how official and unofficial reporting is relayed around the world, in both autocratic and democratic regimes alike. As new media technologies have proliferated, so too have the number of voices competing with the state’s program. In some contexts, these changes have muddled the terms of debate and crowded out official narratives; in other contexts, digital media have created fertile breeding ground for conspiracy theories that threaten to destabilize incumbent regimes.7 The ramifications of such developments have already been seen in various parts of the Global South where the rapid roll-out of social media has dramatically transformed the way information is generated and shared, in many instances eroding trust in official sources.8 More than ever before, state and non-state actors have greater ability to put ideas out into the public sphere, such that the ability of any single voice to control a narrative is far more constrained. 5 Similar dynamics enabled leaders in the Soviet Union, Cultural Revolutionary China,

and Nazi Germany to dictate how information about political justice was disseminated to broader audiences. 6 Conroy-Krutz (2020). 7 Gunitsky (2015). 8 Gunitsky (2015).

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Global transformations have dramatically changed the ways that political authorities in autocratic and former autocratic regimes perform their power and resolve political conflicts, as well as their methods of communication with the general public. In light of these developments, it is important to reconsider the strengths, limitations, and tensions of using a judicial strategy in the digital information age. Phrased another way, have judicial strategies of repression adapted in response to more complex media landscapes? Though modern autocrats may not enjoy the same monopolies on information as in eras past, many have discovered new ways of leveraging digital technologies to their advantage. With regards to political trials, television and internet media have proven to be particularly fruitful for autocrats in spreading visceral images of judicial proceedings before local and international audiences. The visual drama of a trial can be more compelling than a written transcript, since with a live presentation, one does not need to understand the technicalities of law (or even local vernacular) to decipher displays of power in the courtroom. Such spectacles follow in the long-standing tradition of ritualized public confessions in places like Iran, North Korea, and the USSR; in China, such confessions have increasingly been televised.9 The power of visual media was explicit during the televised trials of former Presidents Hosni Mubarak and Mohammed Morsi – among the most widely viewed trials in Egyptian history. In both cases, the trials were filmed and streamed live, ensuring a much broader audience than the one that was assembled in court. And these images were arguably designed to be potent demonstrations of the defendants’ guilt, the dramatic centerpiece being the defendants’ cage: a mesh enclosure resembling a large chicken coop that housed the criminal defendants. In Mubarak’s case, the former president was shown in court lying in a hospital bed, literally too weak to stand trial.10 This physical arrangement was arguably meant as a visual metaphor for the guilt of the defendants, meaning no presumption of innocence from the outset. Indeed, one did not have to understand the formal technicalities of the law or the proceedings in Arabic in order to be affected by the image of Mubarak in a physical cage. The image of an enclosed, enfeebled Mubarak was also livestreamed on a large Jumbotron 9 Fu (2020). 10 El Sirgany, Sarah. (December 28, 2018). Egypt’s Mubarak testifies in the trial of his ousted

successor. CNN. www.cnn.com/2018/12/28/middleeast/egypt-mubarak-morsy-trial-intl/ index.html

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screen right outside of the court.11 Large crowds thus assembled in person to observe these televised proceedings; these viewing parties were a kind of modern manifestation of the old assemblies of court, wherein individuals gathered as an audience to observe the trial but also observe each other. Televised broadcasts and internet livestreams have made it considerably easier to communicate with diverse audiences by making criminal justice a more tangible, visceral experience, even for viewers who are unable to attend court in person. But to ensure that these images become the dominant narrative, autocrats may opt to install additional mechanisms to monitor, filter, censor, and remove alternative content that runs counter to their preferred message. The Chinese government has been particularly adept at such strategies, combining human and machine learning capabilities to control how official information is shared while blocking access to dissenting opinion, and has furthermore offered these services to other autocratic regimes around the world.12 Even in contexts that have less developed digital surveillance infrastructure, regimes have still been able to shut off access to the internet or else impose costs on individuals who seek alternative sources of information.13 But while digital tools have profoundly transformed the ways in which political trials are broadcast, they have not fundamentally changed their core content. Recall that under my theoretical framework, a political trial is essentially a judicial ritual: a highly symbolic and carefully choreographed ceremony that is designed to recast conflict in terms more favorable to the regime in power. Such ceremonies center upon the ritualistic humiliation of criminal defendants. On this note, political trials of today are no different than those of the pre-digital era. Regardless of how the message is delivered – by print, audio, or video – the intent is to villify. In short, autocrats have not lost the ability to manufacture their own political realities; they have simply gained new tools. The denigration of defendants in the courtroom is thus a perennial feature of political justice, whereby tapping into traditional judicial repertoires may be a way of grounding repressive practices in something old, familiar, and stable. But are audiences truly buying what they see? The answer to this question is remains unclear. Fragmentation of the public sphere has created siloed realities, many of which are divided along partisan lines. Establishing common knowledge is harder when observers cannot even agree on the 11 El Sirgany, Sarah. (December 28, 2018). Egypt’s Mubarak testifies in the trial of his

ousted successor. CNN. www.cnn.com/2018/12/28/middleeast/egypt-mubarak-morsytrial-intl/index.html 12 King et al. (2013). 13 Boxell and Steinert-Threlkeld (2019).

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basic facts. With regards to political trials, this suggests that the extent to which narratives presented in court are actually accepted as true by a given audience cannot be taken for granted. Though autocrats have in many respects greater communicative power than ever before; knowing how to direct these channels to the relevant audiences (as well as discerning who those audiences are) remains a challenge.

7.3 implications for due process in emerging democracies Digital and political transformations have had a profound effect on governance and rule of law in emerging democracies. Beginning in the 1990s, the transition from one-party to multi-party rule across the African continent put autocratic incumbents on the defensive and ushered in a new era of political contestation and media liberalization. But for many countries, the trajectory from autocratic to democratic governance has been shaky. Progress has remained especially uneven in the legal and judicial sectors, wherein democratic actors have had mixed success using law and courts to hold power in check. It has thus been common to see commentaries on the “failures” of democratic reform in African courts, critiques of judicial corruption or subservience to power, and public apathy towards the legal system.14 To date, much of the fault for these failures has been attributed to weak reform efforts, insufficient resources to carry out these agendas, or the lack of political will among implementing authorities. All of these factors have undoubtedly played a role in the current state of affairs. But focusing blame on contemporary conditions overlooks the broader history of legal and judicial strategies across the continent, particularly the institutional innovations and adaptations of the autocratic era. One of the central contributions of this book is tracing a through line of legal and judicial development across the colonial, postcolonial, and post-autocratic periods. And as I have argued throughout, widening our historical lens enables us to better understand how institutions of the past continue to define the present. To illustrate these connective themes more concretely, consider the long-standing history of extrajudicial detention across colonial and postcolonial Africa. In particular, preventive detention legislation of the independence era was in many respects a direct continuation of 14 Gloppen (2003); Gloppen and Kanyongolo (2007); Mutua (2001); Widner (2001).

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colonial era emergency regulations that were routinely used by European authorities to arbitrarily arrest and imprison colonial subjects; in the postcolonial era, indigenous leaders chose to reinvigorate these legal codes in order to grant themselves the same power to detain democratic dissidents and consolidate one-party dictatorship. Since the return to multiparty rule, preventive detention laws have been largely eliminated, meaning African presidents cannot simply detain their political rivals without justification. But has the formal repeal of emergency regulations actually changed on-the-ground practices? Though preventive detention policies have become increasingly rare, political authorities still routinely detain their opponents without ensuring due process of the law. Contemporary practices are especially insidious because they ostensibly operate within the bounds of the normal criminal justice system. Opposition leaders in several countries have been routinely charged with a variety of criminal offenses ranging from the petty to the political. Although there is nothing inherently illegal about filing criminal charges against the opposition, many of these cases have lacked merit and are thus summarily dismissed whenever they come to trial. But therein lies the rub: Many of these cases never appear before court. To the contrary, a new pattern has emerged wherein states enter a “nolle prosequi” (decline to prosecute) before a case can go to trial, sometimes the same day a trial was due to begin. Note that a nolle prosequi is not the same as dropping charges; rather, the state leaves open the possibility of restarting the case at a later date. The nolle prosequi gives the state incredible leeway to turn the machinery of criminal justice against adversaries of the incumbent even when lacking sufficient evidence to proceed with the case. Yet, that such cases never gain traction in court does not mean that they have no out-ofcourt impact. For example, while a case is pending trial, and before the state declines to prosecute, the accused is often forced to wait in pretrial detention. Detaining political opponents in anticipation of a trial that may or may not come to pass can be valuable to incumbents during sensitive election periods: rather than permit the opposition to freely mobilize or campaign, the state effectively redirects their time and resources toward fighting a legal case that may never come to fruition. Such logic helps explain the treatment of Zambian opposition leader Hakainde Hichilema following his petition to overturn the 2016 presidential election, whereupon he was accused of treason and spent four months in pretrial detention before the state entered a nolle prosequi on

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the morning his trial was due to begin.15 These perversions of the judicial process have turned many such cases into public spectacles that are openly mocked by public observers. In fact, in Zambia, civil society activists and democratic dissidents have often cheekily chanted “nolle prosequi!” after the state declines to prosecute a prominent member of the opposition. Such measures resonate deeply with extrajudicial methods of the postcolonial era wherein opposition players were routinely subjected to extrajudicial forms of harassment and persecution. Notice that whenever a case does not goes to trial, pretrial detention is just preventive detention by another name. Modern strategies of persecuting political adversaries have increasingly blurred the line between the judicial and extrajudicial. As the sphere of political conflict becomes more crowded and complex, so too do strategies of punishment and persecution. In light of these developments, rather than asking why legal and judicial reform efforts have failed, perhaps more productive questions are whether and how autocratic legacies have persisted.

15 Mfula, Chris. (August 13, 2017). Zambia to drop treason charges against opposition

leader. Reuters. www.reuters.com/article/zambia-politics/exclusive-zambia-to-droptreason-charges-against-opposition-leader-sources-idUKL5N1KZ06O

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Index

Acheampong, Ignatius, 37–38 Act for the Maintenance and Securing of Peace Order and Good Government during periods of Public Emergency (Sierra Leone), 132–133 Adrisi, Mustafa, 48 African Independence Movement (AIM), 115–116 African National Congress (ANC) in South Africa, 45–46 in Zambia, 42, 115–116 Africanization, see decolonization of Anglophone Africa Afro-Shirazi Party (ASP), 41–42, 113 Ahmadinejad, Mahmoud, 1–2 AIM (African Independence Movement), 115–116 Akuffo, Fred, 37–38 All Muslim Nationalist Union of Tanganyika (AMNUT), 115–116 All People’s Congress (APC) alleged coup plot within, 135 arbitrarily detaining opponents, 140–141 creating one-party state, 149 libel suits against, 134 repression of, 131–136 success of, 41, 132–133, 136 Amin, Idi, 48, 51, 62, 184 amnesties, general, 106–107 Amnesty International, 106–107 AMNUT (All Muslim Nationalist Union of Tanganyika), 115–116

ANC, see African National Congress (ANC) Anti-Corruption Revolutionary Movement (Sierra Leone), 139 apartheid, 45–46 APC, see All People’s Congress (APC) Army Night Freedom Fighters, see Tanganyikan Air Rifles Arriola, Leonardo R., 38 Arusha Declaration, 125–126 ASP (Afro-Shirazi Party), 41–42, 113 Assad, Bashar, 11 autocracies effect of information technologies on, 197–201 electoral autocracies, 6 one-party regimes, 111, 114–115, 149, 152–153 phases of, 197 autocrats, see also colonial holdovers; judicial cooperation aided by British, 113, 116–117, 153–154, 175 appointing allies to bench, 49–50 appointing expatriate judiciary, 153–154, 160–170, 175–181 as arbitrary, 10 attacking media, 134, 141 coordinating with elites, 8–10 danger of insider elites, 12, 28, 35–39 danger of outsider elites, 40–41, 43, 82–83

213

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214

Index

autocrats (Continued) dependence on insider elites, 36–37, 46–47 importance of military to, 100–101 legislating repression, 115–116, 126–127, 133–134, 188–190 media use and control, 197–201 overruling judicial decisions, 188–189 paranoia of, 39–40 preference for expatriate judges, 165–167, 175, 179–183 relationship with insider elites, 12, 28, 35–39 rituals and performances of, 15–16 sharing power, 48 showing restraint, 9 theories of autocrat behavior, 5–10 using extrajudicial repression on insiders, 47–48, 99, 125–126 using extrajudicial repression on outsiders, 9–10, 12–13, 30, 36, 42–43, 99 using judicial repression on insiders, 35–36, 43–45, 58–64, 99, 171–173 using judicial repression on outsiders, 45–46, 58, 99 Avoidance of Discrimination Act (Ghana), 171 Ba’ath Party, 9 Backbenchers (Kenya faction of ruling party), 55–56 Banda, Hastings insurrection against, 41–42 purging critics, 38–39 spurning courts, 48 trial of, 77, 155 Bangura, John, 135, 145–146, 148–149 Basko, Kofi, 27 Bellin, Eva, 36–37 bench-packing, see co-optation Benka-Coker, Salako, 181–182 Beria, Lavrenti, 3–4 Bermeo, Nancy, 6 Bhasin, Tavishi, 42–43 Bienen, Henry, 117–119 Bing, Geoffrey, 26–27, 177 Blake, Charles, 137 Bo Xilai, 1–2 Brierley, Sarah, 50 British Government

concern over lack of indigenous judges, 162–163 providing Africa with judges, 177–181 racism of, 22–23, 76, 123–124 reaction to requests for expatriate judges, 181–185 reactions to African trials, 75–77, 123–124, 142–143, 182–183 British High Commission concern with ex-colony stability, 22–23 expatriate judges and, 177–178, 185–186 gathering intelligence on ex-colonies, 96, 131 reporting on African trials, 143–144 requesting pardon for Lansana, 147–148 British Ministry of Overseas Development, 178–179 Bueno de Mesquita, Bruce, 36–37 Buganda, 184, 188–189 CCP (Convention People’s Party), 40–41, 171–172 challengers, see elites headings Chama cha Mapinduzi Revolutionary Party (Zanzibar), 113 Chipembere, Henry, 41–42, 86–87 Chitepo, Herbert, 120–122 Chwe, Michael Suk-Young, 8, 34 Cline Center’s Coup D’etat Project, 83–87 co-optation barriers to, 13–14, 28–29, 49–51 cementing regime cohesion, 159–160 in Kenya, 57–58 in Sierra Leone, 132–133, 138 in Tanzania, 124–125 resistance of judiciary to, 160–162 coercive and noncoercive agencies, 30–31, 36–37, 44, 132–133 Collier, Gershon, 138 colonial holdovers, see also detention, arbitrary; state of emergency laws choosing which to keep, 77–78, 157–159 courts as, 19–20, 77–78, 154–155 colonial law, 154–158 common law, 21, 155–157 communal observation of consequences of defiance, 11–12, 193–194 of each other, 11, 27–28, 34–35, 71–72, 194

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Index commutations, 104–107 concealment theories, 5–8 Conteh, Patrick Gordon, 139 Convention People’s Party (CPP), 40–41, 171–172 coordination theories, 5, 8–10 Coup D’etat Project (Cline Center), 83–87 coup plots data on, 22, 82, 84–90, 92, 94–96 defined, 83–84 foreign media coverage of, 84–88 in Malawi, 86–87, 90 in Sierra Leone, 135 in Tanganyika, 113 insider plots, 37–40 media coverage of, 84–88 military involvement in, 94, 145 outsider plots, 40–43, 81–82 size of, 90 veracity of, 84 coups data on, 88–89 in Sierra Leone, 136–139 in Uganda, 62 in Zanzibar, 113–114, 117, 129 leading to unstable regimes, 90 military coups, 62, 136–139 military involvement in coups, 196 palace coups, 37–38 courts, see judiciary headings; political trials Cover, Robert, 192–193 de Silva, Desmond, 144 Debemoja pamphlet, 125–126 decolonization of Anglophone Africa, 20–21, 159–163 defectors from ruling party, 101–103, see also elites, insider; elites, outsider democracy courts presumed to uphold, 16, 30–31, 195–196 Nyerere on, 114–115 repressive strategies under, 201–203 strategies for eroding, 6 transitions to, 201 “democratic backsliding,” 6, 195–196 Democratization, Third Wave of, 198 Denning Committee on Legal Education for Students from Africa, 162–163 Denning, Alfred Thompson, 162–163

215

detention, arbitrary as colonial holdover, 19–20, 78, 115, 201–203 criticism of, 61–62 in Ghana, 171 in Kenya, 42–43, 55–56, 61–62, 78 in Sierra Leone, 131–133, 139–142 in Tanganyika, 115–116 in Uganda, 188–189 re-emerging under democracy, 202–203 used against outsider elites, 26–27, 42–43, 115–116, 171 Dharamshi Mehta, Pramesh, 179 Dove-Edwin Commission of Inquiry, 138 Dove-Edwin, G.F., 138 Drury, H., 180–181 EAP (Endangered Archives Programme), 89–90 Economic Crimes Tribunal Decree 1975 (Uganda), 97–98 elites, insider as target audience of political trials, 12, 27–28, 46–47, 67 autocrat paranoia towards, 39–40 autocrats coordinating with, 8–10 changeable status of, 94 covert rebellion of, 38–40 danger to autocrat of, 12, 28, 35–39 defectors vs., 101–103 defined, 12, 36–37, 92–94 ease of mobilizing, 38 extrajudicial repression used on, 47–48, 99, 125–126 investment in regime, 36–38 judicial repression used on, 35–36, 43–45, 58–64, 99, 171–173 likelihood of going to trial, 100–101 likelihood of serving full sentence, 104–107 military agents as, 92–94 plotting coups, 37–39, 59–64 relationship with autocrat, 12, 28, 35–39, 46–47 repressing outsider elites, 42–43 elites, outsider danger to autocrat of, 40–41, 43, 82–83 defectors vs. opposition, 101–103 defined, 12–13, 36–37, 40, 92–94 extrajudicial repression used on, 9–10, 12–13, 30, 36, 42–43, 99

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216

Index

elites, outsider (Continued) judicial repression used on, 45–46, 58, 99 open rebellion of, 40–43 repressed by outsider elites, 42–43 vulnerability of, 44 Endangered Archives Programme (EAP), 89–90 ex ante and ex post controls, 14, 28–29, 51–52, 152–153, 165–166, 177 expatriate judges, see judiciary, expatriate Falk, Barbara, 32 Feeley, Malcolm M., 17 First battalion air rifles, see Tanganyikan air rifles Foreign and Commonwealth Office (FCO), 88–89, 153–154 Foucault, Michel, 9–10 Gandhi, Jennifer, 42–43 Gatuguta, Joseph, 67–69 Gazettes.Africa, 89–90 Geertz, Clifford, 34–35 general amnesties, 106–107 Georges, Philip Telford, 127–129 Gessen, Masha, 192 Ghana Africanizing the judiciary, 160–163 extrajudicial repression in, 26–27, 171–172 junta, 98–99 one-party rule, 171 outsider elites in, 40–41 political parties, 40–41, 171–172 political trials, 98–99, 152–153 Ghana Armed Forces Act 1962, 97–98 Goldstein, Robert Justin, 29 Goudie, W. H., 186, 188–190 Great Purge, 2 Griffiths, Coldwell, 186–188 Guriev, Sergei, 6–7 Hassan, Mai, 49–51 Hassid, Jonathan, 15–16 Hichilema, Hakainde, 202–203 Hingi, Sergeant, 123 human rights, 6–7, 106–107 Hussein, Saddam, 9 information technologies effect on autocracies, 4–7, 197–201

Jackson, Robert H., 111 Jefferson, Thomas, 51 Jones, S. B., 182–183 judicial cooperation dismissal for lack of, 152–153, 172–173 exacting from expatriates, 165–166 expatriate degree of, 167–177, 188–190 expressions of, 167 indigenous degree of, 169–174 obtaining, 13–14, 28–29, 49–52, 152–154, 165–170 judiciary, see also political trials ex ante and ex post controls of, 14, 28–29, 51–52, 152–153, 165–166, 177 appointing allies to, 49–50 as colonial holdover, 19–20, 77–78, 154–155 challenges in Africanizing, 159–165, 182–183 colonial origins of, 19–20, 154 courts martial, 97–101 extrajudicial repression used on, 51–52, 174 function of, 16–17, 19–20, 30–31, 195–196 military vs. civilian, 97–99, 196–197 power under autocracies, 5, 16–17 presumed to uphold democracy, 16, 30–31, 195–196 professionalism of, 50–51, 152–154, 160–162, 195 regime cohesion and, 52 resistance to co-optation, 160–162 vulnerability of, 51 judiciary, expatriate as disconnected from local politics, 165–166, 187–188 autocrat preference for, 153–154, 160–170, 175–183 decisions overruled by autocrats, 188–189 desirability of appointments to, 185–190 in Uganda, 186, 188–190 predominance of, 160, 187–188 provided by British government, 153–154, 175, 177–181 supply of, 165–167, 184–185 judiciary, indigenous availability of, 159–165, 182–183 cooperativeness of, 169–174 judiciary, expatriate, see also judicial cooperation; judiciary; political trials

https://doi.org/10.1017/9781009197151.010 Published online by Cambridge University Press

Index Jusu-Sheriff, Salia, 141 Juxon-Smith, A.T., 141–142 KADU (Kenya African Democratic Union), 55 Kambona, Oscar, 117–119, 122, 125–127 KANU, see Kenyan African National Union (KANU) Kapwepwe, Simon, 102–103 Karefa-Smart, John, 141 Karugu, James, 64 Kawalya-Kagwa, Michael, 183–184 Kawawa, Rashidi, 117–119, 122, 124–126 Kebschull, Harvey G., 83–84 Kenya, 54–78, see also Kenyan African National Union (KANU) arbitrary detention in, 42–43, 55–56, 61–62, 78 British influence in, 74–75 co-optation in, 57–58 extrajudicial repression in, 30, 42–43, 55–58, 61–62, 65, 78 maintaining regime cohesion, 55–58, 62 National Assembly, 67–70, 72–73, 76 political parties and factions, 55–57 political trials, 58–78, 173–174, 176 Preservation of Public Security Act, 42–43, 61–62 Kenya African Democratic Union (KADU), 55 Kenya People’s Union (KPU), 55–57 Kenyan African National Union (KANU) maintaining regime cohesion, 56–58 pledging loyalty to Kenyatta, 70–71 use of extrajudicial repression, 42–43, 55–58, 61–62 use of judicial repression, 58–64 view of defectors, 102–103 Kenyan Societies Registrar, The, 30 Kenyatta, Jomo alleged conspiracy against, 59–66 conviction in colonial court, 77 pledges of loyalty to, 70–74 smear campaign against K. Mwendwa, 173–174 suspicious murders under, 47–48 trial of, 155 using judicial repression, 55–64 Kilson, Martin L., 15–16 Kirchheimer, O., 17, 32–33 Kironde, Apollo (cousin of Kawlya-Kagwa), 184

217

Kironde, Apollo (uncle of Kawlya-Kagwa), 184 Kisumu Massacre, 42–43 Kitundu, S.J., 124–125 Kiwanuka, Benedicto, 51 Korsah, Arku, 164, 170–173 KPU (Kenya People’s Union), 55–57 Kruschev, Nikita, 3–4 Kuran, Timur, 39–40 Lansana, David, 136–137, 146–149 Leballo, Potlako, 127–128 Levitsky, Steven R., 36–37 Liddy, Patrick Joseph, 180 Lightfoot-Boston, Henry, 136–137 Linzer, Drew A., 95–96 Lust, Ellen, 6 Luyimbazi-Zake, S.J., 183–184 Macaulay, Berthan, 141–145 Malawi Malawi Congress Party (MCP), 38–39 using expatriate jurists, 179–181, 187–188 Mandela, Nelson, 45–46 Manteaw, Samuel O., 156–158 Margai, Albert alleging coup plot, 135 arrest of, 137 asking Britain for expatriate jurists, 181–183 attack on judiciary, 134 backlash against, 134–136 drafting Republic Bill, 145–146 exile of, 140–141 military coup in aid of, 136–137 party affiliations, 132–134 repression of opposition, 133–134 Margai, Milton, 131–134 Mati, Fred, 68–69 Mboya, Tom, 47–48, 56–58 McGowan, Patrick J., 83–87 MCP (Malawi Congress Party), 38–39 media, see also propaganda autocrat attacks on, 134, 141, 200 autocrat control of, 141, 197–201 coverage of coup plots, 84–88 coverage of extrajudicial repression, 96 coverage of political trials, 129 in the digital age, 198–201

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218

Index

military agents as insider elites, 92–94 likelihood of going to trial, 100–101 trials of, 97–98 military, the fusing with ruling party, 124–125 importance to autocracies, 100–101, 149–150 involvement in coups, 37, 136–139, 141–142, 145 Moi, Daniel Arap, 69–72 Morris, H.F., 154–155 Morsi, Mohammed, 199–200 Moscow Trials, 2 Moustafa, Tamir, 16–17 Mpungu, Paul, 189 Mshala, Samson, 115–116 Mtemvu, Zuberi, 115–116 Mubarak, Hosni, 199–200 Mueller, Susanne Dorothy, 42–43 Munyi, Kamwithi, 71–74 Mutesa, Edward, 184 Mutiso, Gideon, 61–66, 69–70, 158–159 Mwamunga, E. T., 73 Mwendwa, Kitili extrajudicial campaign against, 174 privileged status, 164, 173 replaced by Wicks, 175–176 resignation, 66, 174 suspected of conspiracy, 61–65, 173–174 Mwendwa, Ngala, 164, 173–174 Myerson, Roger B., 8–9 National Assembly (Kenya), 67–70, 72–73, 76 National Interim Council (Sierra Leone), 139 National Liberation Council (Ghana), 98–99 National Reformation Council (NRC), 137–138, 141–145 National Servicemen (Tanzania), 124 Nationalist Enterprise Party (NEP), 115–116 Nationalist party (Zanzibar), 41–42 native judges, see judiciary, indigenous Native Law under colonialism, 155–156 Navalny, Alexi, 4–5 Ndolo, J.M.L., 61–66, 173–174 NEP (Nationalist Enterprise Party), 115–116

1963 treason trial (Ghana), 152–153 1964 court martial (Tanzania), 120–125 1967 General Elections (Sierra Leone), 135–136 1967 court martial (Ghana), 98–99 1967 wrongful-imprisonment trial (Sierra Leone), 147 1968 treason trials (Sierra Leone), 94–96, 141–145 1969 foreign subversion trial (Zambia), 152–153 1969 treason trial (Sierra Leone), 147–148 1970 treason trial (Tanzania), 125–129 1971 sedition trial (Kenya), 58–78, 173–174, 176 1971 treason trial (Sierra Leone), 146 Njonjo, Charles, 60–64, 75 Nkrumah, Kwame alleged plot to assassinate, 26–27, 171–172 declared “President for Life,” 172–173 dismissing judges for noncooperation, 152–153, 172–173 loyalist plotters, 98–99 relationship with Korsah, 171–173 use of courts, 27 nolle prosequi, 202–203 NRC (National Reformation Council), 137–138, 141–145 Nyerere, Julius aided by British, 113, 116–117 alleged assassination plot against, 126 co-optation of military, 124–125 coming to power, 114 confidence in, 119–120, 124 insider opposition to, 125–126 instituting repressive measures, 115–116 judicial deference to, 128–129 on one-party “democracy,” 114–116 post-court-martial support for, 124–125 reign of, 111–113, 129–130 relationship with Kambona, 119 revolt against, 113–114, 116–120, 122–123 trial of, 77, 155 use of courts, 122–123, 125–129 obeservation, see communal observation Obote, Milton, 62, 183–184, 188–189 Ochwada, A., 26, 72–73 OD (Overseas Development Office), 88–89

https://doi.org/10.1017/9781009197151.010 Published online by Cambridge University Press

Index ODA (Overseas Development Assistance Programme), 153–154 Odinga, Oginga, 42–43, 55–57, 102–103 Okwanyo, John, 57–58 opposition parties as undermining state unity, 114–115 repression of, 30 opposition party members, see also elites, outsider arbitrary detention used on, 115–116 likelihood of going to trial, 101–102 Otchere, Robert Benjamin, 171–172 Overseas Development Assistance Programme (ODA), 153–154 Overseas Development Office (OD), 88–89 Owino, Daniel, 64–65 palace coups, 37–38 patronage appointments, see co-optation People’s Court (Nazi Germany), 2 People’s Defense forces (Tanzania), 124–125 People’s National Party (PNP), 132 Peoples’ Convention Party (PCP), 115–116 Peoples’ Democratic Party (PDP), 115–116 Pereira, Anthony W., 31 Pinto, Pia, 47, 57 Polanyi, Michael, 34 political trials, see also judiciary headings as coercion, 44 as means of repression, 1–5, 7, 14–17, 30–31, 77 as narrative, 33–34, 52, 62–66, 121–124, 194 conviction rates, 103–104 courts martial, 97–101 data on, 88, 94–101, 103–104, 140 defining, 32–33, 193–194 in Egypt, 199–200 in Ghana, 98–99, 152–153 in Kenya, 58–78, 173–174, 176 in Sierra Leone, 94–96, 132–133, 141–145, 147–148 in Tanzania, 125–129 in Zambia, 152–153 intended audience for, 46–47, 122–123 language of, 33–34 media coverage of, 129 Moscow Trials, 2 outcomes, 45–46, 66–70, 104–107 process of, 11, 31–33

219

reinforcing regime cohesion, 12, 28, 35–36, 43, 58–59, 120–122 risks of, 4–5 techniques for demoralizing defense, 142–145 theories of, 5–12, 30–35, 74–78, 151 timing of, 1–2 tracking, 94–96 under colonialism, 77, 155 used against defectors, 101–102 used against insider elites, 12, 28, 35–36, 99–102 visibility of, 4–5, 7 political trials as performance coordination theories of, 8–10 on film, TV and internet, 98–99, 127–128, 199–201 show trials, 32 political trials as ritual, see also communal observation narrative power of, 44–45, 63–66, 69–70, 124, 193–194 reinforcing regime cohesion, 58–59, 120–122 shared beliefs and, 33–34 weaponization of, 15–16 political violence, see repression headings Posner, Eric A., 32 postcolonial Anglophone Africa, see also colonial holdovers beginnings of, 111–112 British influence in, 74–75 data on, 21–24, 86–87 one-party regimes, 111, 114–115, 149, 152–153 Powell, Jonathan M., 85 Preservation of Public Security Act (Kenya), 42–43, 61–62 preventive detention, see detention, arbitrary propaganda, see also media Debemoja pamphlet, 125–126 as fueled by paranoia, 39–40 smear campaigns, 65, 174 Public Security Act (Kenya), 42–43, 61–62 punishment, see repression headings purges, 2, 9–10 Putin, Vladimir, 4–5 Rajah, Jothie, 6 Rangel, Ignatius, 179

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220

Index

rebellion, see coup plots; coups regime cohesion in Kenya, 55–58, 62 internal threats to, 12, 35–39, 43–44, 194–195, 197 judiciary and, 52 maintaining, 12, 35–36, 120–122, 140, 142, 159–160 regimes one-party regimes, 111, 114–115, 149, 171 stability of, 90 repression defining, 29–31 types of, 30–31, 96 repression, extrajudicial nolle prosequi, 202–203 concealment theories of, 6–7 in Ghana, 26–27, 171–172 in Kenya, 30, 57–58, 65 in Sierra Leone, 131–133 in Uganda, 96 in Zambia, 202–203 legislating, 115–116, 126–127, 133–134, 188–190 limits of, 57–58 media coverage of, 96 noncoercive agencies, 30, 132–133 reasons for using, 44 research on, 80–81 smear campaigns, 65, 174 used by outsider elites, 41–42 used on insider elites, 47–48, 99, 125–126 used on judiciary, 51–52, 174 used on outsider elites, 9–10, 12–13, 30, 36, 42–43, 99 repression, extrajudicial, see also detention, arbitrary repression, judicial, see political trials Republic Bill (Sierra Leone), 145–146 repugnancy clauses, 155 revolutionary threshold, the, 39–40 rituals, see political trials as ritual Roberts, Brian, 187 Rogers, Amadu, 139 Rosberg, Carl G., 111 ruling circle, see elites, insider Russell, James McConnell, 179–180

Sachdeva, S.K., 64, 66, 76, 174 Sarkodee-Adoo, Julius, 173 sedition, see also treason 1971 sedition trial, 58–78, 173–174, 176 in Kenyan law, 59–60, 65, 70–71 Senate House Library Archives, 89–90 Seroney, Jean-Marie, 68–69 shadow archives coup plots recorded in, 22, 82, 87–90, 92, 94–96 defined, 88 Sharif, Nawaz, 1–2 Shklar, Judith N., 1, 27, 32–33 show trials, see political trials as performance Sierra Leone, 130–150, see also All People’s Congress (APC) 1968 elections, 135–136 Africanizing the judiciary, 160–162 co-optation, 132–133, 138 consolidation of power under Stevens, 149–151 coups, 135, 137, 139, 145–146 Creoles in, 182–183 early years of independence, 111–112, 130–150 extrajudicial repression in, 131–133, 136–137, 139–142 judicial repression in, 141–149 junta, 137–138, 141–145 political development timeline, 146 political trials, 94–96, 132–133, 135–136, 141–148 Sierra Leone People’s Party (SLPP) attempts to consolidate power, 131–134, 136, 138 founding of, 132 losing to APC, 41, 136 members detained, 139–142 members tried for treason, 146 outlawing of, 149 smear campaigns, 65, 174 Smith, Ian, 45 Social, Political and Economic Event Database (SPEED), 86 Socialist People’s Republic of Zanzibar and Pemba, 113, see also Zanzibar Societies Ordinance, 78 Solomon, Peter H., 31

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Index Southworth, Frederick, 179–180 SPEED (Social, Political, and Economic Event Database), 86 Stalin, Joseph, 2–4 Stalinist Russia, 7 state of emergency laws colonial origins of, 19–20, 201–202 in Sierra Leone, 131–133 response of expatriate judges to, 188–190 Staton, Jeffrey K., 95–96 Stern, Rachel E., 15–16 Stevens, Siaka accused of coup-plotting, 135 arrest of, 136–137 attacking media, 134, 141 becoming prime minister, 136, 139 disagreement with M. Margai, 132 executing Lansana following reprieve, 147–149 getting help from Guinea, 145 increasing his own powers, 145–146, 149–150 repressing opposition, 131, 140–141, 144–145 Tanganyika, see also Tanzania; Zanzibar autocracy under Nyerere, 114–116 early years of independence, 114–120, 129 political parties, 115–116 revolt against Nyerere, 113–114, 116–125 union with Zanzibar, 111 Tanganyika African National Union (TANU) fusing with military, 124–125 legislating repression, 115–116, 126–127 reaction to coup attempt, 119–120 relationship with Nyerere, 119–120, 124–126 TANU Annual Conference (1963), 114 TANU Youth League, 118, 124 Tanganyikan Air Rifles, 113–114, 116–125 TANU, see Tanganyika African National Union (TANU) Tanzania, 112–130, see also Tanganyika; Zanzibar 1964 court martial, 120–125

221

Arusha Declaration, 125–126 beginnings of, 111–114, 116–130 political development timeline, 129 revolt against Nyerere, 122–123 socialism of, 113, 125–126 Tejan-Sie, Banja, 138 Thyne, Clayton L., 85 tipping games, 42 Traditional Courts (Malawi), 97–98 treason, see also sedition Tanzanian treason law, 126–127 treason trial in Ghana, 152–153 treason trial in Tanzania, 125–129 treason trials in Sierra Leone, 94–96, 141–148 Treisman, Daniel, 6–7 trials, see political trials Tubman, William, 146–147 Tumbo, Christopher Kasanga, 115–116 Twining, William, 155–156 Uganda 1971 military coup, 62 arbitrary detention in, 188–189 Economic Crimes Tribunal Decree 1975, 97–98 expatriate jurists in, 183–184, 186, 188–190 extrajudicial repression in, 96 overruling judicial decisions, 188–189 Umma Party, 41–42 United Democratic Party, 141 United National Independence Party (UNIP), 39–40 United Party, 40–41 United Republic of Tanzania, see Tanzania Van de Walle, Nicolas, 42 violence, see repression headings Wabuge, Wafule, 68–69 Waldner, David, 6 Wariithi, Henry, 55 Way, Lucan A., 36–37 We Yone (APC newspaper), 134 Wedeen, Lisa, 11, 15–16 Westmoreland, William C., 100–101 Wicks, James, 175–177 Wilson, Harold, 147–148

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222 Windham, Ralph, 120–122 Woldense, Josef, 51 Yahaya, Hussein, 115–116 Young, Crawford, 37–38, 157 Zambia arbitrary detention in, 202–203 political parties, 39–40, 42, 115–116

Index political trials, 152–153 propaganda, 39–40 rebellion in, 41–42 Zanzibar, see also Tanganyika; Tanzania political parties, 41–42, 113 rebellions, 41–42, 113–114, 117, 129 socialism of, 113 union with Tanganyika, 111, 113

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