In a rule of law, justice fulfils a paradoxical but essential function: it exercises part of the coercive power of the State while protecting citizens from abuses of that same power. It may arrest, judge, condemn and imprison; but it remains legitimate only if it acts according to pre-emptive, precise, impersonal and applicable rules to all, including those who govern.

When magistrates, prosecutors, investigation services and prison administration are placed directly or indirectly in the service of political power, this architecture is inverse. Justice no longer limits the power of the State: it gives it an appearance of legality. Political repression is no longer presented as an arbitrary act, but as regular law enforcement.

One of the most disturbing features of this phenomenon is that it is not always necessary for the Head of State to give an explicit order. In long-term authoritarian systems Early obedience It develops: prosecutors, police officers and sometimes judges learn to identify people who the power considers dangerous and files in which an over-independent decision could jeopardize their careers. Judicial instrumentalisation can thus function without a red telephone, without written instruction and without direct proof of a presidential intervention — It becomes structural, internalized and routine.

The problem far exceeds the situation of some opponents. When justice is available to neutralize the opponents of power, no citizen can be sure that it will not one day be used against it.

Is a decision just because it was rendered by a judge? The answer is clearly negative: a judicial decision enjoys an institutional authority, but by this alone does not acquire an indisputable moral, democratic or legal legitimacy.

• The central role of the public prosecutor and the« Early obedience » Judges
• The vaguely formulated offences, the preferred instrument of repression
• Pre-trial detention as an early political sentence
• Military courts trying civilians
• Eight contemporary national configurations: Tunisia, Uganda, Tanzania, Chad, Burkina Faso, Algeria, Egypt, Burundi
• The consequences for the citizen: self-censorship, breach of trust, economic cost
• The vicious circle of authoritarian justice — and its boomerang effects on the rulers themselves
• Twelve concrete guarantees to rebuild truly independent justice

Power doesn't need to imprison everyone. He just has to show that he can imprison anyone.

Chapter IJustice: an institution, but also a requirement

There are several concepts that are often confused:

A decision can therefore be legally registered, signed by a magistrate and executed by the prison administration, while constituting a profound injustice. Universal history is full of laws and judgments that are legally formal but substantially iniquitous: colonial laws, apartheid regimes, exceptional courts, convictions of dissidents, bans on political parties, trials of journalists or imprisonment of trade unionists. The magistrate's dress, legal vocabulary and judicial ceremonial are not enough to turn persecution into an act of justice.

The rule of law is not limited to the existence of a law

An authoritarian conception of legality is to affirm: « The person was arrested under the law; she was tried by a court; It must therefore accept the decision. » This concept confuses two concepts: Government by lawin which the power uses the texts to govern and suppress, and Rule of lawin which power itself is limited by higher standards, fundamental rights and independent courts.

An authoritarian regime may have a Constitution, a Parliament, courts, a criminal code and a very elaborate judicial procedure. What distinguishes the rule of law is not the existence of these institutions, but their real capacity to compel governments. According to World Justice Project, the rule of law implies, inter alia, effective limitations of government power, lack of undue influence, protection of fundamental rights and effective access to remedies; sound Index 2025 observed decline in the rule of law in 68% of countries assessed and stresses the erosion of judicial independence and the contraction of civic space.

Chapter IIWhy is justice a privileged instrument of authoritarian regimes?

Repressing without openly assuming repression

Visible police violence, enforced disappearances and extrajudicial executions directly expose the regime to national and international condemnation. Judicial proceedings offer a superior political advantage: they transform the adversary into an offender. The opponent is no longer imprisoned « because he opposes the president »but because it would have undermined the security of the State, broadcast false news, offended the head of State, incited insurrection or maintained intelligence with a foreign power. Dissidence is thus transferred from political to criminal.

Producing an appearance of neutrality

The government can argue that « let justice do its job »even though the entire criminal chain depends on the executive. The technique is effective: the police question, the prosecution has a serious qualification, the pre-trial detention is requested, the court validates the procedure, applications for provisional release are rejected, the trial is delayed — and incarceration already has its political effects while the government claims it cannot comment on a judicial case. The procedure then becomes a technology of government.

Pursue several purposes at once

Judicial instrumentalization is not just about sentencing: it simultaneously pursues several purposes, often more decisive than the sentence itself. In this sense, arrest may be more important than judgment — Pre-trial detention becomes an early sentence.

Chapter IIIThe central role of the Public Prosecutor's Office: the justice that takes the lead

The Prosecutor ' s Office as a point of contact between political power and criminal justice

In many African legal systems inherited from continental law, the Public Prosecutor's Office has a strategic position: it decides or influences the initiation of prosecutions, criminalization, detention in custody, referral to the judge, detention requests, referral to an ordinary, special or military court, and the severity of the sentence required. When the career, appointment and discipline of prosecutors are closely dependent on the executive, the formal autonomy of the prosecutor becomes insufficient.

International principles of judicial independence emphasize the need to protect judges and prosecutors from undue interference, including in appointments, advancement and discipline. The UN Special Rapporteur on the independence of judges and lawyers In particular, it identifies four forms of threats against judicial systems: institutional capture, limitation of their powers, their instrumentalization and direct attacks.

Early obedience

The most sophisticated instrumentation does not necessarily require an order. A prosecutor can sue because he or she knows that a failure to prosecute would be misunderstood, that a failure to prosecute could jeopardize his or her advancement, or that too independent judges are transferred, marginalized or punished. This phenomenon — institutional conformity, professional self-censorship — gradually settles through discretionary appointments, geographical changes, selective promotions and material insecurity of the least compliant magistrates.

Selectivity of prosecution

One of the most significant indicators of judicial politicization is asymmetry: comparable statements lead to an immediate arrest when they come from an opponent, a total absence of prosecution when they come from a partisan of power. The violence committed by the security forces remains unpunished, while those attributed to demonstrators are being pursued severely. A court that does not prosecute acts but selects the perpetrators loses its impartiality.

Chapter IVLegal instruments of law enforcement

vaguely formulated offences

Authoritarian regimes favour incriminations capable of extensive interpretation: offence against the head of state, contempt for institutions, infringement of the credit of the state, dissemination of false news, violation of the morale of the army, disorder of public order, intelligence with a foreign power, incitement to revolt, acts of terrorism, cybercrime. The problem is not that the state can never protect national security or public order. — it appears when these concepts are not defined with sufficient precision. A vague offence allows the prosecution to choose after the fact which words will be considered criminal.

National security as an absorbent category

National security is a legitimate purpose of law. But it becomes a threat to freedoms when it embraces any criticism of the government. There must be a distinction between the security of the population, that of the territory, that of democratic institutions, the personal security of the rulers and the political security of the regime in place. — These concepts are not equivalent. The African Commission on Human and Peoples' Rights considers that any restriction on freedom of expression must be provided for by law, pursue a legitimate interest and be necessary in a democratic society, and that public figures must tolerate a higher degree of criticism.

Offense to the Head of State

The offences specifically protecting the honour of the Head of State are based on a personalized conception of power. In a democracy, the president must be able to be criticized, caricatured and questioned more intensely than an ordinary citizen. The African Commission repeatedly called upon States to abolish criminal laws on defamation and insult, recalling their deterrent effect on journalists and on the monitoring role of the media.

The criminalization of « false news »

False information can cause real harm. But the notion becomes dangerous when the state decides alone what is true — especially since public statistics are often incomplete, secret public contracts and authorities are reluctant to respond. The criminal sanction of false news is then likely to become a sanction against embarrassing information.

Combating terrorism

Counter-terrorism is essential in several African regions. But terrorist qualifications can be diverted to target opponents, journalists, bloggers, human rights defenders or civil society organizations. The African Commission demands that counter-terrorism measures respect fair trial guarantees and prohibit the use of exceptional courts to circumvent ordinary courts.

Chapter VPre-trial detention as a political penalty

In many political cases, the main objective is not to obtain a final conviction: it is enough to keep the person in detention during an election period, a campaign of mobilization or a phase of social protest. Even when the person is finally acquitted, the power was able to achieve its goal.

Applications for release are denied on the grounds of the risk of escape, disturbance of public order, fraudulent consultation or seriousness of the facts. When these reasons are formulated abstractly and automatically repeated, pre-trial detention ceases to be exceptional.

Even without a conviction, the procedure can lead to job loss, personal bankruptcy, health damage, public stigma, travel ban or de facto ineligibility. Criminal law then becomes an instrument of harassment.

Chapter VIMilitary courts and special courts

The use of military courts against civilians is one of the most obvious expressions of judicial instrumentalization. A military court is structurally attached to the armed institution: its members may depend on the hierarchy or specific rules which are difficult to reconcile with the appearance of independence necessary when it judges a civilian opponent.

The principles of African Commission Military courts should only try purely military offences committed by military personnel, and under no circumstances should they exercise jurisdiction over civilians. In particular, the Commission requested Uganda to amend its legislation to prohibit the judgement of civilians by the General Court Martial — The practice does not cease.

Chapter VIIEight contemporary configurations observed in Africa

It would be intellectually wrong to talk about « African Justice » as a homogeneous block. Institutions, legal traditions and degrees of independence vary considerably from one state to another: some countries have influential constitutional courts, active bars and courts capable of resisting the executive; Others experience almost complete capture of the judiciary. The cases below illustrate mechanisms, without claiming completeness.

Tunisia — use of « plot »

Since the concentration of powers since 25 July 2021, several organizations have documented a worsening of the repression of opponents, lawyers, journalists and activists. Human Rights Watch In early 2025, more than 50 people were detained for political reasons. In April 2025, 37 persons convicted to sentences ranging from four to 66 years in a « plot », at the end of a trial denounced for procedural shortcomings — An illustration of an extremely serious criminalisation transformed into an instrument capable of including ordinary political, diplomatic or associative relations.

Uganda — political opposition and military justice

Uganda has long used military courts in cases involving civilians and opponents. In 2025, Human Rights Watch denounced the detention of opponent Kizza Besigye before a military court, as well as the conviction of his lawyer for contempt, without sufficient guarantees of a fair trial. Amnesty International Notes that the authorities have continued to defend the trial of civilians before military courts despite a Supreme Court decision declaring this unconstitutional: a high court decision is not always sufficient if the political power refuses to take the consequences.

Tanzania — accusations of treason and political locking

In 2025, the opponent Tundu Lissu was prosecuted for treason — an offence punishable by death and not allowing bail. Human Rights Watch described the procedure as politically motivated and noted the successive postponements of the trial: the more serious the prosecution is, the more it facilitates continued detention, even before any final examination of the evidence.

Chad — opposition and prosecution after local violence

The opponent Success Masra was arrested in May 2025 and prosecuted for incitement to hatred and violence following intercommunal clashes. Human Rights Watch requested his release, considering that his detention was of a political nature and that the authorities had not provided sufficient convincing evidence to justify his continued detention.

Burkina Faso — security constraint and loss of critical voices

The regimes resulting from military coups d'état usually invoke security urgency and the need for unity. In June 2026, several organizations asked the Burkina Faso authorities to reveal the fate of journalist Atiana Serge Oulonmissing after being taken by security guards in June 2024 — in a context where government criticism can be equated with an attack on national morale or a collaboration with the enemy.

Algeria — security charges against activists

In 2025, Amnesty International called for the abandonment of the prosecution of several Hirak militants, who were subjected to heavy penalties on the basis of state security charges, considering that the prosecution was punishable by fundamental rights.

Egypt — extension of terrorist and security skills

Amnesty International reports that thousands of people have been referred to the courts for terrorism-related offences, while some were targeted solely because of the peaceful exercise of their rights — in a system combining security services, specialized prosecution, prolonged detention and restriction of the work of lawyers.

Burundi — repression of criticism and impunity

Amnesty International described for 2025 an environment marked by arbitrary arrests, enforced disappearances and persistent repression of peaceful dissent. Justice is assigned in two directions: it prosecutes those considered critical, and it does not effectively prosecute those suspected of serious violations. The instrumentalization is measured not only to those who are condemned, but also to those who are never.

Chapter VIIIRegimes resulting from coups d'état: justice under the sign of exception

The paradox of the « Refoundation »

Military regimes frequently present themselves as transitional powers to restore order, fight corruption, save the nation and prepare a new constitutional order. But their legitimacy is not an election, so they are particularly sensitive to the challenge: the regime's criticism can then be presented as an attempt to destabilize, betrayal or complicity with foreign powers.

Permanent exception

Security crises create an environment in which the exception tends to become the rule: restrictions on demonstrations, suspension of the media, administrative detentions, military courts, limitation of procedural guarantees, prosecution of morale abuses. A State facing a real threat does not cease to be bound by law — On the contrary, the seriousness of the threat increases the need for independent controls.

Confusion between army, state and nation

An army is an institution of the State; It is neither the state in its entirety nor the nation. Criticizing a military strategy, defence expense or violation by soldiers does not automatically constitute an attack on the nation. When any criticism of the army is called antipatriotic, patriotism becomes an obligation of silence.

Chapter IXWhy can judges participate in an unfair system?

Instrumentation is not always venal; It can be ideological, or simply the product of an internalised professional culture. Five logics are most often combined:

• Fear — a transfer, a career freeze, disciplinary proceedings, reprisals against his family.
• Oportunism — the search for promotion, appointment in high court or political recognition.
• State ideology — the sincere conviction that stability prevails over freedom and that the presidential authority is a bulwark against chaos.
• Vocational socialisation — A young magistrate quickly learned the implicit boundaries of his autonomy: some detainees were not released, some officials were not summoned.
• Fragmentation of responsibility — Each (policeman, prosecutor, judge, clerk, prison director) argues that he is performing only a limited task, and overall responsibility disappears behind the institutional division of labour.

Chapter XIs a judge's decision necessarily fair?

The answer remains negative for five cumulative reasons:

• Because a judge can enforce an unjust law — A law criminalizing peaceful criticism can be validly passed in domestic law and nevertheless contrary to fundamental rights.
• Because the judge can be dependent — a decision made under pressure does not become independent solely because no written instructions are produced.
• Because the procedure can be unfair — access denied, lawyers prevented, confession obtained under duress, presumption of innocence violated.
• Because the sanction can be disproportionate — in the case Lohé Issa Konaté against Burkina FasoThe African Court on Human and Peoples ' Rights ruled that the imprisonment of a journalist for defamation violated freedom of expression and required the State to amend its legislation.
• Because a court can serve a purpose other than law — To dismiss a candidate, to close a media outlet, to weaken a party. The misappropriation of proceedings constitutes a form of arbitrariness, even if each act taken in isolation has a legal appearance.

Chapter XIHow can we recognise a politically instrumentalised procedure?

No isolated index is always decisive: it is their accumulation that makes it possible to identify a probable instrumentalisation.

Chapter XIIThe consequences for the citizen

The disappearance of legal certainty

Legal certainty does not only mean knowing the texts; it implies being able to provide a reasonable basis for how they will be applied. When the concepts of « disorder » or« against State credit » Depending on the political context, the citizen can no longer know what is allowed. Law ceases to be a rule; It becomes a suspended threat.

Self-censorship

The citizen ends up wondering if he can criticize a public policy, denounce suspected corruption, share an article or support an opponent. This uncertainty has a deterrent effect greater than the actual number of arrests: power does not need to imprison everyone; He just has to prove that he can imprison anyone.

The breakdown of trust and informal justice

The citizen no longer sees the court as a place of appeal but as an extension of the administration; he hesitates to file a complaint against a powerful official or to testify. When public justice loses its credibility, citizens turn to political networks, religious authorities, private mediation — sometimes towards violence. The weakening of official justice therefore not only produces individual injustice: it weakens the state itself.

Economic cost

Dependent justice also affects investment: the entrepreneur may fear expropriation, arbitrary breach of a contract or tax procedure used for pressure purposes. Judicial independence is not only a human rights issue — It determines economic confidence and the mobilization of capital.

Chapter XIIIThe vicious circle of authoritarian justice

It often follows the same cycle: power weakens institutional guarantees, magistrates understand political expectations, decisions in line with power multiply, citizens lose confidence, protests move outside institutions, the regime invokes disorder to strengthen repression — And justice becomes even more dependent.

In the long run, even the rulers can become victims of the system they have built: a new power can use against them the same laws, the same prosecutors, the same exceptional courts. A justice of order is faithful to no one. She is faithful to the power of the moment.

A justice of order is faithful to no one. She is faithful to the power of the moment.

Chapter XIVJudicial independence does not decree: twelve guarantees to rebuild it

A Constitution can state that « the judiciary is independent ». This formula remains ineffective if the executive controls appointments, transfers, promotions, budget and execution of decisions. Independence must be material, professional and institutional — It is based on 12 concrete guarantees:

1. Reforming Senior Judicial Councils — majority of judges elected by their peers, without executive control over appointments, promotions and discipline.
2. Ensuring safety — a judge must not be able to be transferred or dispossessed of a case because of the content of his decisions.
3. Strengthening the independence of the Public Prosecutor ' s Office — Statutory independence, prohibition of individual instructions, transparent criteria for appointment.
4. Prohibiting the trial of civilians by military courtswithout exception related to the political nature of the charge.
5. Remove criminal offences of offence and defamation — protection of reputation can be ensured by the right of reply and civil compensation.
6. Strictly define national security offences — precisely defined act, demonstrable intent, real risk and proportionate sanction.
7. Framework pre-trial detention — decisions which are individualised, reasoned, time-limited and subject to prompt appeal.
8. Protecting lawyerswho cannot be arrested, intimidated or prosecuted for carrying out their duties.
9. Publish decisionsto enable citizen control and the detection of selective prosecutions.
10. Strengthening Constitutional Courts, only able to control vague criminal laws and states of emergency.
11. Financial protection of justice — an institution dependent on the ministry for its resources remains vulnerable.
12. Ensure enforcement of decisions — Judicial independence is fictitious when the administration can ignore the judgments which displease it.

Chapter XVThe role of African institutions

The African Charter on Human and Peoples' Rights

The Charter guarantees equality before the law, the right to a hearing, the presumption of innocence, the right to defence, freedom of expression, freedom of association and freedom of assembly.

African Commission

It has developed important principles on fair trial, judicial independence, military courts, freedom of expression and counter-terrorism, recalling that civilians should not be tried by military courts and that restrictions on freedom of expression should be necessary and proportionate.

The African Court

The African Court can help to define continental standards, as it did inKonate case concerning criminal defamation. However, its effectiveness remains limited by the limited number of States allowing direct access to individuals and NGOs, and by the difficulties in implementing its decisions.

Subregional courts

Some regional courts, including the ECOWAS Court of Justice, have played an important role in arbitrary detention and freedom of expression — However, their scope depends on the will of States to execute the judgments.

Chapter XVIThe responsibility of judges

It would be unfair to regard all magistrates as accomplices. In several countries, some judges order releases, cancel proceedings, refuse illegal evidence, declare unconstitutional laws or defend journalists — at the cost, sometimes, of their career or safety.

But the judicial function cannot take refuge entirely behind the argument of the law. A magistrate retains a professional and ethical responsibility: to strictly interpret criminal law, to protect the rights of the defence, to refuse manifestly artificial qualifications, to monitor the necessity of detention, to justify its decisions and to resist pressure. Independence is not only a privilege granted to the judge. It's an obligation to the defendant.

Chapter XVIICan justice be neutral in a non-democratic regime?

Justice can retain pockets of autonomy in an authoritarian regime: some commercial, family or civil disputes are treated professionally. But real independence is measured in cases where power has a direct interest. A court is not fully independent because it correctly settles 95% of ordinary cases — It must be able to withstand in the 5% politically sensitive cases.

The decisive test concerns the judge's ability to release an opponent, convict a security officer, annul a presidential decision, protect a journalist or invalidate an election.

Chapter XVIIIJustice as a State consciousness

Justice should not be seen as merely a public service responsible for punishing. It is the institutional consciousness of the State. Its role is precisely to assert in power that anything politically desirable is not legally permitted, that the majority cannot suppress fundamental rights, that the head of State is subject to law, and that the suspect remains presumed innocent.

A justice that never knows how to say no to the power no longer constitutes a judicial power. It becomes an administration of repression.

The question of the meaning of justice in authoritarian regimes leads to a demanding answer. Justice remains institutional as long as there are courts, magistrates, procedures and decisions. But it loses its substance when it no longer protects the citizen from the state, when it selects people to be prosecuted according to their political position and when it turns opinions into criminal threats.

A decision is not fair because it was made by a judge. It deserves the name of justice when the law applied is compatible with fundamental rights, the crime defined with precision, the evidence obtained legally, the independent and impartial court, the effective defence, and when the same rules apply to rulers and governed.

Instrumental justice does not really protect the state: it temporarily protects the holders of power. In the long term, it weakens institutions, destroys confidence, radicalizes oppositions and creates a precedent that each new regime can use against the precedent.

The true rule of law does not recognize the number of courts built or the severity of convictions. It recognizes a much rarer ability: to allow the citizen to challenge power without fear that justice will be used to destroy it.

The following 24 sources were consulted and verified before publication. They come from intergovernmental organizations, African courts and international human rights organisations.