The question of whether law ought to enforce morality has been an issue of philosophical debate for ages. What should be the rightful limit to the sovereignty of the individual over himself? Where does the authority of society begin? How much of human life should be assigned to individuality, and how much to society?
According to natural lawyers, what is good or bad is universal, unchanging and irreplaceable whether adhered to or not. The phrase unjust law is not law only supports the argument that law must be just, and what is just depends on whether it adheres to moral values and principles. Although morality and the law seem to have a common purpose and the means to achieve the stated purpose, the implementation of these means to achieve the purpose is different and because of these differences, it is correct to say that in any society not all laws are based on the morality of that society.
The recent events in this country have occasioned further discourse as to whether the law needs to advance moral living or if our morals need be subjected to legal vetting. Interestingly, the snow ball has fell right at the doorstep of our churches. Pastor Paul Nthenge Makenzi of the Good News International Church is a man under scrutiny after it was revealed that multitudes of his congregation had succumbed to death as a result of fasting as guided by the church's principles of faith to heaven. Hence the question, who oversights churches?
Under our law, evidence guides courts in determining cases, sadly or otherwise, courts are not swayed by emotions, assumptions and hearsay. A Paul Nthenge Makenzi trial will be ground breaking, after exhumation of the bodies and conducting of postmortem(s), the Investigators must round up witnesses to convince the court that indeed all along, the deaths were as a result of his super natural convincing and utterances.
As to the charges to be possibly preferred, legal experts seem to agree to disagree, Prof Kithure Kindiki, an international law scholar and Interior Cabinet Secretary is convinced that genocide charges are trite in the circumstances. Others have opined that under our Penal Code, only crimes wherein facts can be construed can sustain a conviction, that, Makenzi is believed to have operated a cult or near cult religion through coercion and or voluntary allegiance.
As a result, legal minds are tilting further towards possible charges, suicide pacts amongst them. Radicalization has also been mooted so is mass burial without permits as outlined in the public order framework. The Prevention of Terrorism Act No.30 of 2012 (Revised Edition 2015) defines a terrorist act as an act or threat of action which creates a serious risk to the health or safety of the public or a section of the public. And so, is willful starvation to death an act of terrorism or an extreme belief? Makenzi must somehow be tried in a court of law. Evidently, there is urgent need to review our penal laws and codify them to foresee and ably provide for emerging complex religious and non-religious based crimes.
The writer is an advocate of the High Court of Kenya