Exalting Legality above Morality is Moving Us Closer to the Law of the Jungle

Many Kenyans love to cite legality in total disregard of morality. Thus you will hear a Kenyan politician celebrating his/her victory in an election petition, knowing very well that he/she perpetrated the election offences that gave rise to the petition. Similarly, you will hear striking workers whose industrial action causes untold suffering to thousands, or even millions, insist that their strike is justified because they gave a strike notice within the stipulated time.

 

Nevertheless, legality is subordinate to morality because, ideally, society’s laws emanate from its moral orientation. Except in cases of dictatorship, law is really society effecting greater enforcement of the core of its moral dictates using the coercive instruments of state. Thus morality precedes law because a society’s laws are inspired by its moral outlook. For example, the idea of human rights, which many lawyers have enthusiastically embraced, is essentially moral rather than legal. This is why sound human rights theorists will tell you that a right is something inherent in the bearer of it, and can therefore not be granted by a constitution, but can only be recognised or violated by it.

 

Could it be that the current loud cries of “Haki Yetu” (“Our Rights”) without a corresponding insistence on “Majukumu Yetu” (“Our Responsibilities”) is the result of the mechanistic approach to rights characteristic of our Western-oriented legal system, with its undue emphasis on the rights of the individual in almost total disregard of his/her responsibilities to society? Here I am reminded of a quotation associated with a prominent lawyer in Kenya: “If the law is on your side, bang the law; if the facts are on your side, bang the facts; if neither the law nor the facts are on your side, bang the table.” Note that there is nothing here about paying attention to the voice of conscience, but rather an obsession with winning a case “by all means necessary”.

 

In considerably homogenous traditional societies, the distinction between morality and law is minimal if not non-existent. Thus in my own Dholuo, there is a single word, chik which is most easily translated as “rules”, but which covers both moral rules and legal requirements. The same is true in several other Kenyan languages with which I am familiar, including Gikuyu, Kiswahili, and several Luhya languages (remember that “Luhya” is an umbrella term, popularised in the early 1920s, for more than ten ethnic groups). However, in a morally plural society such as twenty-first century Kenya, there is often a disconnect between morality and law, with several modes of behaviour that are considered to be morally wrong by a sizeable proportion of the population making their way into the list of what is legal to do.

 

Nevertheless, the fact remains that a person who is guided by conscience seldom cites the law on matters that touch the good of society, insisting on the higher law of conscience that restrains human beings from doing wrong whether or not someone is watching. In this regard, the British poet, Matthew Arnold, famously asserted that morality asks us to be self-governed at the feet of law. In other words, for Arnold, one who is morally mature does not really need law, since he/she is committed to doing the right and shunning the wrong without any threat of force characteristic of legal sanction.

 

The central concepts in morality are “rightness of action” and “virtuousness of character”, both of which are determined by the conscience. On the other hand, the core notion in law is “legality”, which simply means anything that is in harmony with the body of legislated rules. This body is best described as shifting sand, as we have witnessed with Kenya’s election laws which have been amended several times over the past ten years. Even the Constitution of Kenya (2010) is likely to be amended fundamentally before the next elections, if media reports about introducing an executive Prime Minister and a one-term, seven-year figurehead presidency are anything to go by. Older Kenyans will also recall the numerous constitutional amendments that were made between 1964 to 1982 to increase the power of the Presidency, leaving the former supreme document in legal tatters, or, to use a different figure of speech, resulting in a mongrel out of the original federalist and parliamentary system that was meticulously negotiated in the Lancaster House conferences.

 

One of the darkest days in Kenya’s history was the one in mid 1982, when the de facto one-party Parliament voted to turn the country into a de jure one-party state: the amendment was legal but immoral. Nevertheless, those who waved the legal card in favour of the amendment insisted that it had been done in accordance with the law - that due process had been followed. Those enthusiastically waving the legal card over the moral one in matters such as elections, industrial action (strikes, go slows, etc.),  and disputes over property had better quickly realise that they are thereby helping to accelerate the pace at which our society is disintegrating. People of conscience do not harp on legality, but rather strive for amendments to the law of the land to better harmonise it with sound moral principles. Only in this way do they slow down the coming of doomsday, when the law of the jungle replaces the moral law which restrains a sizeable proportion of humankind from committing unimaginable attrocities - the day in which we no longer pay attention to morality enjoining us to be self-governed at the feet of law, but instead are free to use legal technicalities to trample as many people as possible in our march towards “self-actualisation”.

In Support of Capital Punishment for Rape: A Response to Edwin Kamau’s Counter-arguments

Between 24^th and 25^th February 2018, Mr. Edwin Kamau responded to a number of tweets that I had posted in favour of capital punishment for rape. My tweets were in response to media reports that a fifteen-year old girl in Wajir had been gang-raped for three days. I asserted that perpetrators of such outrageous crimes are not fit to live. Mr. Kamau was of the view that contrary to my assertion, rape does not deserve the death penalty. I commend him for staying with the issue and offering several counter-arguments to which I wish to respond below. The paragraphs below are not edited to my usual standard, but I have decided to post them here as I find it easier to respond to Mr. Kamau in this way than in a series of tweets. The reader will make greater sense of what I say below by first going through my conversation with Edwin Kamau and Mutinda Kitana from 24^th to 25^th February 2018.

 

Dear Mr. Kamau

You asked if we were not justified to use insights from other jurisdictions such as the US and China. Using the US and China for insight is justifiable as long as we remain responsible for our decisions independently of theirs. The trouble is that many lawyers feel dutybound to treat precedents from overseas as infallible. The Us uses case law, common law, and so do we; but for us this is the result of colonialism, and part of our intellectual emancipation must surely be the endeavour to get rid of colonial baggage that hinders us from striking out in our own path.

 

Applying case law from other jurisdictions without taking cognisance of our own value system does compromise our sovereignty. Never forget that a people’s legal system ought to reflect their ethical value system. Yes it is alright to borrow from the West; but we ought to adapt rather than adopt. Even the Bill of Rights in the Constitution of Kenya 2010 is so terribly individualistic in a most un-African manner: our peoples are communalistic: where are the group rights?

 

You cited “Freedom from cruel and unusual punishment”. Yes this is in our constitution, but the people made the Constitution, so they have a right to interrogate and amend it. The idea of “cruel and unusual punishment” is strange because all punishment has an element of what is being termed “cruelty”: you cannot punish anyone by serving them their favourite meal: you always subject them to something that causes them discomfort. In sum, punishment is, by definition, uncomfortable, and anything uncomfortable can be construed as cruel.

 

Is capital punishment for rape a cruel and unusual punishment? Yes according to Western liberalism; not necessarily so according to our societies that have a communalist orientation.

 

You say in some cases capital punishment is justified to maintain order: I think rape horribly disturbs order and tranquility by causing emotional trauma, often spreading deadly diseases, and sometimes resulting in unwanted conceptions.

 

You say the justice system is for maintaining order but not reparation to the aggrieved? Really? What is the basis for this assertion? Why would capital punishment be justified for treason, murder and terrorism but not for rape? I wonder how many women would agree with you on this one. I am not a woman, but I certainly do not agree because rape destroys order in society. What is your basis for excluding rape from this list? Male bias for a political system dominated by men, and caring little for the plight of women who are usually the victims of rape perpetrated by men?

 

You assert that the justice system is not based on subjective individual’s perception of justice in relation to grievance”? What makes this very assertion objective rather than subjective? Is objectivity even possible in view of the fact that all of us are subjects rather than objects?

 

You cited a US ruling that rape does not deserve the death sentence. I disagree with that ruling because it ignores the plight of the victim, probably on the false assumption that her plight has minimal negative effect on society.

 

You posed the question: “Does rape make [sic] irrepairable damage to the life of the victim”? Some men might say “No”; most women, and some men would say “Yes” – lifelong emotional trauma, unwanted conception, exposure to deadly infections, crisis in the marriage of the rape victim, etc.

 

You said that rape victims can still be productive despite heineous crime. By whose standards? Productive for who? I guess you would be satisfied if she is still able to report to work; but would she be equally satisfied? The idea that only rape which results in death deserves capital punishment puts undue emphasis on physical death, paying inadequate attention to lifelong damage on the victim and on the society of which she is a member.

 

You said my position that rape deserves capital punishment is emotional. In my view, there is nothing like an emotional argument, because an argument is composed of propositions rather than emotional expressions. You claim emotions are affecting my thinking: who can truly say their emotions do not affect their thinking? Would that not suggest two persons in one – an emotional one distinct from a rational one? I do not see the error in the argument as you have summed it up. You only think it is faulty because of your presumption that rape does not deserve capital punishment.

 

I am aware that many now find my position out of place, but I think this is due to the vigorous campaign against capital punishment both in the Western-dominated academia and media rather than due to the actual demerits of retaining Capital Punishment. Let the sober discussion continue!

Luo Concepts of Time and Numbers: A Response to Oby Obyerodhyambo

I am not on facebook, but my sister Janet Osiro has drawn my attention to our brother Oby Obyerodhyambo’s excellent Facebook Post on the Luo concept of time and numbers.

 

In my blogpost on Friday 30^th December 2016 titled “Why I Do not Make New Year Resolutions” (http://kenyancrossroads.blogspot.co.ke), I sought to demonstrate that the idea of a “year” is always religious, and that the January New Year is foreign to Africa: this fits well with Oby’s point that in Luo cosmology there is no twelve-month cycle.

 

Oby’s highlighting of the Luo use of base 5 rather than base 10 has confirmed what I had suspected for some time.

 

Oby’s exposition of the Luo focus on seasons rather than years is “right on”. In my blog post I had also highlighted the fact that even the ways in which weeks are understood all over the world is religious. We have three popular weeks in Kenya - the Muslim one beginning on “Juma Mosi (moja), the biblical one beginning on the so-called “Sunday”, but which the Bible calls “the first day of the week”, and the civil week which begins on Monday “Wuok tich” (“the day people set out for work”), “tich ariyo” (literally “work two”), “tich adek” (“work three”), “tich ang’wen” (“work four”), “Tich abich” (“work five”). I would appreciate any information on the Luo week, if even such a thing exists!

 

Oby’s outline of the way in which the Luo divided the day is excellent: it agrees with what our late maternal grandmother, Posia Yiembe Odera, had told me when I was doing my oral literature research for my A levels and undergraduate work in the 1980s. My only reservation is with his use of “saa” which is a semitic word (“shaa” in Hebrew, “saa” in Arabic”). I would therefore simply delete “saa” from the divisions of the day as he outlines them. Well done dear brother! Let us proudly continue to examine our cultures and correct the myriad lies unleashed on them by Western imperialism!

Traditional Luo Funerals Were not Costly like Current Ones

In a recent article, Dr. Bitange Ndemo referred to the splashy houses that many members of the Kenyan middle class are putting up in their ancestral homes as “dead capital” because they are difficult to sell or to present as collateral for bank loans. For this he has received both praise and blame. One of the arguments that I have read against Ndemo’s position is that if people do not put up such houses, their children will be irrepairably ashamed in the event that they (the parents) die. Some have even called such buildings “socio-cultural investments”, thus diverting themselves and others from Dr. Ndemo’s focus on economics. Here I want to focus on Luo funerals in earlier times, because the issue of “tradition” keeps on popping up in the debate on the logic of putting up splashy homes in ancestral lands.

 

Many now believe that traditional Luo funerals are terribly expensive. The truth is that the current splashy Luo funerals are very different from the traditional ones.

 

My grandmother, the late Posia Yiembe Odera, who witnessed the aftermath of the so-called “First World War”, told me the following regarding traditional Luo funerals:

1.      If a person died before sunset, he/she was buried the same day. If he/she died after sunset, he/she was buried the next day (there were no elaborate funeral preparations for days or even weeks).

2.      A person was buried naked inside his/her hut. This is why the Luo word for a widow is “chi liel” (“the wife of a grave”) - she lived in the hut where her husband was buried. In-laws only came to the funeral once they were sure the dead had been buried to ensure they did not see him/her naked.

3.      There was no cooking in the bereaved home before the burial: instead, neighbours brought “nyoyo” (“a mixture of boiled maize and beans”) and other foods to feed those who had come from far.

4.      The day after the burial, a single cow was slaughtered and shared among the in-laws (the numerous cows slaughtered in a single funeral these days were unheard of).

5.      All the above changed drastically when Luo men, who had been conscripted for the “First World War”, came back with loads of cash to show off. They went to the homes of in-laws who had been bereaved while they were away in the war, and splashed their cash in the name of “mourning in arrears”. Another elderly lady informed me that it was also at that time that Luo men violently forced their own wives to smoke cigarettes as a status symbol.

 

I will never forget a time when Raila Odinga challenged the extravagance run-away spending in Luo funerals: that was one of those rare occasions when they essentially shouted him down; and as an astute politician, he retreated. It will take courage to challenge all this unrealistic spending for the benefit of the many widows, widowers and children whose resources are heartlessly squandered in the name of mourning the dead. This desperately needed reform will come through those members of the Kenyan middle class who undertake a critical evaluation of their impoverished and impoverishing value system that leads them to spend money on luxury rather than on investments - on status symbols rather than on ventures that truly raise their status.