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”.
