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!