Between 24th and 25th
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 24th to 25th
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!
