Nothing wrecks a country more than when impunity reigns supreme, whether it is a dictatorship, authoritarian state or one which conducts regular elections.

Impunity is the freedom from punishment or consequences for illegal and wrongful actions. It means those with power, whether state or non-state actors, get away with theft, killings, rape and other crimes, willy-nilly. It is, in fact, impossible to have a benevolent dictatorship when impunity reigns, since those in power will inevitably take actions that are for personal rather than public benefit.

Impunity drives runaway graft and extortion by public officials. It is the foundation for electoral theft and illegalities which often end with violence by the state which also goes unpunished. It leads to assassinations, extrajudicial executions, looting and extortion by public and security agencies, who know nothing can happen to them. And it is what is behind those unexplainable Sh10m “donations” to churches and charities. Impunity leads to the sort of arrogance that enables people to brush aside questions about sources of funds and conspicuous consumption and lifestyles.

Over the years, Kenyans have tried all manner of things to reign in impunity with little success. Indeed, one of the most prominent reasons for the push for a new Constitution was to find ways to legally stop impunity, and Chapter Six was included in the Constitution as a first step to control impunity. But this was quickly brushed aside by the Judiciary in a bad ruling in 2012, allowing indicted suspects of the most horrible crimes to run for office that essentially laid the foundations for the Jubilee regime. Its excesses since then are no surprise, for how can those reveling in impunity be the ones to rein it in?

This is what makes the current “war on corruption” a fallacy. Much as we want it to work, it’s limitations are obvious, for unless we can get to the bottom of Eurobond, SGR, NYS and Afya House scandals, hands are tied. We saw how fast the noise on contaminated sugar fizzled out once well connected companies were implicated!

We have protested against impunity and its children, corruption and police killings. We have produced reports galore. The Auditor General’s reports make for chilling reading, but go no further than providing a historical record of the impunity enjoyed when it comes to public funds. We have replaced officials in public bodies, only to see revamped theft as we saw with the NYS. Reason? Because the new officials saw how easy it was for their predecessors to get away with it, getting but a slap on their hands at most, and even that given begrudgingly.

Full distance

And we have seen police replaced, transferred and vetted yet killings of citizens continue unabated, even after creating public institutions to offer oversight, which are then starved of funds, or staffed with people afraid to go the full distance. 

But there may be some hope yet. Recently the courts—yes that institution that is attracting the ire of those in power, or think they are in power—have started imposing personal responsibility to public officials who break the law. The Miguna Miguna judgment which imposed personal fines on Interior Cabinet Secretary Fred Matiang’i and Immigration boss Gordon Kihalangwa when it demanded that the fines are paid by the duo personally and out of their salaries rather than using public funds.

As at December there was no clarity if the fines had been paid as directed, but knowing how the regime bureaucracy works, it will not be surprising if these fines are somehow recouped by the duo from allowances, bonuses or from “confidential” and unaccountable funds that dominate the security, intelligence and State House/OP sectors.

More interesting, this past week, High Court Judge Reuben Nyakundi ordered six police officers to personally pay Sh7.8 million for illegally arresting and detaining innocent Kenyans. He further ordered that these costs must not come from public funds, but be borne by each police officer personally.

Now that is a great move, and something that perhaps may slow down the sense of impunity that police officers walk around with killing “suspects” in cold blood and even boasting about it in the media. I can imagine that this is something that the family of Martin Koome, killed by former Kasarani OCS Nahashon Mutua would want to replicate, and should be assisted by the NGOs who do public interest litigation. Framed suspect Kevin Odhiambo who was a cellmate of Koome should also take up proceedings against Mutua at personal level.

This is something that the Chief Justice ought to encourage within the courts for cases that touch on impunity. Imagine if those who negotiated and signed odious debts that were then misused were to be personally liable. Imagine if all the families of kin extra-judicially killed by the police were to make each killer officer personally responsible. There are few better ways to let public officials—in the administration, police, treasury, intelligence, military—know that illegality has consequences. 

- The writer is former KNCHR chair. mkiai2000@yahoo.com