Kenyans must refuse to descend into a Taliban-style justice system

By Donald Kipkorir

Kenya: Thomas Hobbes [1588-1679], that distinguished English Philosopher said we decided to come together as a community, for the opposite will have been absence of order that is in “ … continual fear, and danger of violent death, and the life of men, solitary, poor, nasty, brutish and short.”

In choosing to live in a community, we agreed to submit ourselves to the sovereign and its instruments. By choice, we have surrendered our sovereign power to the Presidency, Parliament and Judiciary. In so, doing, we must trust them to act in our best interest.

The foundation of our society is a justice system represented by the judiciary, and its other ancillary pillars of the police and the prison system. Our legal system is Anglo-Saxon and no other.

The moment, our justice system and its structures break down, then is the beginning of the unraveling of our society.

Recent events in our country make me deeply worried. It is like we are watching an oncoming train, and refusing to get off the rails.

Due process of law

Two weeks ago, Onesmus Ngunjiri, the MP for Subukia was reported to have assaulted a policewoman. And several times, we have seen on TV, police officers being assaulted by members of public. In addition, our Courts have issued orders, which are not being complied with. And of late, we are seeing public servants being literally sent home without due process of law. The public also has decided to take the law into their hands by meting instant justice to suspects of all kinds, from pickpockets to witches. For real, it is as though, we have decided to reverse 100 years of having established the modern legal system.

Somalia at the bottom

Every year, the Foreign Policy magazine, and Fund For Peace, a Washington-based think tank, collaborate to publish the Failed States Index. In arriving at the list, twelve indices that cover social, economic and political factors are gone into.

The indices coalesce around four areas: loss of monopoly of instruments of violence, erosion of legitimate authority, inability to provide public service, and inability to engage in international diplomacy. This year, Kenya has been ranked No.17 from the bottom. In undermining our justice system, we will accelerate our ranking to be closer to that of Somalia that is at the bottom.

The executive arm of the government has a cardinal duty to see to it that we are reined in. The presidency is the only one with sole control of the instruments of enforcement and monopoly of violence. Through the police and military, the presidency maintains law and order, protects life and property, prevents and investigates crime, and enforces court orders and the law in all its facets. Countries like Somalia, Democratic Republic of Congo and Zimbabwe failed by inaction of the majority who allowed a minority destroy them. In these countries and similar failed states, the justice system becomes captive to a minority. The judicial system and the coercive pillars became appendage to a clique.

As we turn fifty and usher in the jubilee year, Kenyans of all stripes must be on guard. We are all enjoined to protect our justice system. Our Police should symbolize stability and security. In times of chaos and turmoil, Police Stations need be sanctuaries, and police officers, our guardian angels. No civilised society assaults a policeman. Our Judiciary should be temples of justice, where our rights are protected.

We will all rue the day, when we left our justice system to break down and surrendered ourselves to mob justice or kangaroo courts. Like Martin Niemöller [1892-1984], that famous German theologian, we will weep and say:

First they came for the communists, and I didn’t speak out because I wasn’t a communist.

Then they came for the socialists, and I didn’t speak out because I wasn’t a socialist.

Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist.

Then they came for me, and there was no one left to speak for me.

And then, it will be too late for Kenya. We must all stand for justice for each one, and for all. Unless we want to be No. 1 in 2014 Failed States Index.

— The writer is an advocate of the High Court of Kenya