Weaponising the law — how selective prosecution drives global democratic decay

Selective prosecution is a tactic used by the powerful to annihilate their opponents. The veneer of rule of law is the means used to charge, prosecute and jail opponents to achieve subversive, undemocratic ends.

Silencing and eliminating political opponents from running for political office or influencing politics is the aim. When election staff are victims of nefarious (non)prosecutions, then, unambiguously, democracy itself is the target.

Prosecutions succeed when the opponents do commit crimes. While the convictions may be legally justifiable, the timing, process, punishment, and importantly, the very decisions to prosecute (or not) are emerging internationally as a metric to measure the independence, impartiality and integrity of justice systems.

Therefore, a justice system that lacks these essential qualities suggests democratic backsliding. Paradoxically, backsliding occurs when the assassins of democracy use its institutions to camouflage their true aim, that is, to eviscerate democracy itself.

Case studies

Epitomising the above observations are two case studies, one in Turkey and the other in India. The third case study is of a prosecution in Pietermaritzburg, South Africa. The accused in the latter case should never have been prosecuted at all.

The Indian case

In India in 2019, Rahul Gandhi, a leader of the Indian National Congress, a political party that lost its dominance to the BJP political party, was prosecuted for defamation for insulting the relatives of Prime Minister Narendra Modi. Criminal, not civil, defamation was preferred.

The case proceeded at a pedestrian pace. Apparently miffed by the judge refusing his application to have Gandhi appear in court in person, the complainant, Pranesh Modi, asked that the prosecution be halted indefinitely.

In 2023, as the presidential elections of 2024 loomed, Modi claimed that he had new evidence and that the prosecution of Gandhi should resume. The hearing proceeded before another judge. Progress was unprecedentedly swift. Seven hearings held over 20 days resulted in Gandhi’s conviction for defamation.

Alarmingly, the judge imposed the maximum penalty of two years’ imprisonment. Such a penalty disqualified Gandhi from serving as a member of parliament and standing for elections in 2024. The day after sentencing, and even before Gandhi had the chance to note an appeal, the lower house of parliament disqualified him from his parliamentary duties. Had he been sentenced to even a week less than two years, he would not have been disqualified.

Gandhi’s appeal to both the lower court and the high court failed. Eventually, India’s supreme court posed the single unanswered question that matters in selective prosecution cases: Why did the trial judge find it necessary to impose the maximum sentence of two years?

To the high court, the supreme court repeated the question. Considering “voluminous pages” spent in rejecting the application for stay of conviction, an explanation had “not even been touched [on] in their orders”.

The supreme court stayed the conviction, saying that the ramifications were wide-ranging. It affected not only Gandhi’s right to continue in public life, but also the right of the electorate, which had elected him, to represent their constituency. Additionally, “no reasons have been given by the learned Trial Judge for imposing the maximum sentence, which has the effect of incurring disqualification”.

The Turkish case

In 1995, Sevan Nişanyan, a 60-year-old Turkish-Armenian journalist, writer and linguist returned to develop his home village of Şirince, Izmir province, Turkey.

Sirince had been declared a protected area. Nişanyan needed permits for his developments. He tried persistently to get permits. None was forthcoming. He proceeded to build without permits.

In 2014, the court of appeals approved his two-year jail sentence on charges of illegal construction of a 40-square-metre shed on his own property. Piled on this charge were many others arising from Nisanyan’s development of the village.

In 2017, he received another 10 years in jail before he became eligible for parole. While furloughed, he escaped from imprisonment and sought asylum in Greece.

The question is: Why a jail sentence? Violators of building laws usually pay an administrative fine, or the authorities demolish the building.

Why prosecute Nişanyan? He was not the only one violating construction laws. The Turkish landscape is littered with buildings that manifestly fail to meet even basic building standards.

Prime Minister Recep Tayyip Erdoğan had his palace built on the Atatürk Forest Farm, despite court orders aimed at protecting the environment.

Without any explanation for selecting him for prosecution, Nişanyan, and those involved in the local and international petition campaign calling for his release, conclude that he is being punished for his history, literary work challenging official ideology, criticisms of Muslim beliefs and Islam, being Armenian and “doing something out of the box”.

The Pietermaritzburg case

In preparation for the 29 May 2024 general elections, Musawenkosi Mnikathi was employed as an area manager by the Electoral Commission of South Africa. Based on the complaint of a political party, which followed and handed him over to the police, he was charged and prosecuted for illegally transporting ballot boxes in his private vehicle without a police escort.

From the outset, the IEC emphasised that transporting ballot papers to voting stations without a police escort was not only permitted, but also necessary. With the support of the IEC, Mnikathi applied unsuccessfully for his discharge from prosecution.

The trial commenced with members of the political party testifying for the prosecution. For the defence, the provincial electoral officer and the IEC trainer testified. None of the IEC witnesses were even cross-examined.

A year after his arrest, and after many court appearances at great cost and inconvenience to Mnikathi, Magistrate Edmund Szudrawski accepted the evidence of the IEC officials. He acquitted Mnikathi.

Again, the question arises: Why did the prosecution proceed when, objectively, no law existed requiring area managers to be escorted by the police? The application for discharge, which pertinently raised the validity of the prosecution, allowed both the prosecutor and the magistrate another opportunity to rethink the soundness of their resolve to prosecute Mnikathi. Still, the slow wheels of the criminal justice system trundled on to trial.

Acquittal was the only sensible outcome to avert the embarrassment of an appeal. An inquiry into the conduct of State officials involved in persisting with the prosecution, when no law requiring a police escort existed, would also not be off limits.

Non-prosecutions

Simultaneously with and compounding the egregiousness of Mnikathi’s prosecution were two non-prosecutions. The IEC complained to the South African Police Service about individuals unlawfully entering its warehouses in eThekwini. Despite producing a video recording of this transgression, no arrests have been made.

Similarly, no one has been charged arising from an IEC complaint about another incident in eThekwini when a voting station presiding officer was woken at home in the middle of the night and harassed about bulk materials lawfully stored at the voting station in Chesterville.

Therein breeds the cancer

When the question of why elicits no response, the probabilities are that there is no rational response. When officials in the criminal justice system act irrationally, users of their services may also cease to be rational. Therein breeds the cancer of democratic decay. DM