Kenyans are litigious, but they are not fools
What you need to know:
- The reason is that one is empowered to display one’s anger at wrongdoing and to assert a commitment to a different world view.
- Kenyans are thus not foolishly litigious. Instead, going to court is a means of asserting a commitment to the Kenya that people want.
At a recent workshop at the University of Oxford, a participant questioned the logic of Zimbabweans’ appeal to a politicised legal system and asked whether they are “foolishly litigious”.
It got me thinking about Kenya. Most Kenyans I know have, at some point in their lives, gone to court over a perceived injustice usually related to a family, land, or employment dispute.
However, they are well aware of the cost and the time involved in going to court, and are fairly pessimistic about the likelihood of a fair trial.
In contrast, almost no one I know in the UK has ever gone to court, or ever had a reason to step inside a courtroom (unless one is a lawyer), although they have more faith in judicial processes.
So, are Kenyans foolishly litigious? The answer is No.
As in Zimbabwe, there may be good reasons to resort to judicial redress even if experiences and expectations are far from positive.
The reasons provide an interesting insight into the daily tension between the Kenya that people live in and the Kenya that they want. One of the explanations for the difference between Kenya and the UK is simple — Kenyans are more likely to suffer an injustice that transgresses formal rules and moral norms than the British.
This is not because Kenyans are more immoral or criminally minded, but is due to greater opportunities that exist to abuse differential economic and power relations, inefficient institutions and endemic corruption, to advance vested interests.
In turn, many Kenyans are motivated to go to court, at least in part, by a sense of anger that due processes were not followed and the fact that others think they can get away with wrongdoing by recourse to some powers or bribery.
SEEKING REDRESS
In short, for many, the problem is a limited commitment to the rule of law, which one can counter by asserting one’s own commitment to the same.
Recourse to the law consequently becomes not only a means of seeking redress, but also a form of resistance — a way to differentiate right from wrong; to assert political agency and claim the moral high ground, even if one’s appeal is ultimately unsuccessful.
In this context, and as the anthropologist Jeremy Gould has argued with regards to Zambia, legalism — an ethical attitude that holds moral conduct to be a matter of rule-following — is linked to a certain mode of engagement with society.
Above all, it promises an effective, empowered type of personhood, a capacity to influence and have an impact.
Thus, there is reason to go to court even if one knows that the battle will be long, arduous, and expensive, and even if the judicial process is in danger of falling foul of the same problems of incompetence and corruption.
The reason is that one is empowered to display one’s anger at wrongdoing and to assert a commitment to a different world view.
One consequence, however, is that, if people’s immediate reaction is to go to court, judicial processes can become a substitute for party politics.
In other words, the main problem comes to be viewed as immoral individuals rather than problematic rules or structures. In turn, while such immoral agents may be found in the Judiciary, therein one also finds official rules and processes that can be appealed to.
Ultimately, this choice of dispute resolution displays a commitment to the rule of law and faith in Kenya’s laws — perhaps most notably the Constitution — but also a high level of scepticism and lack of faith in other processes and institutions.
COMMITMENT
Most starkly, the time and effort that people expend on judicial processes highlight the extent to which citizens feel that it is likely to be a more fulfilling strategy by which to assert moral agency, even with the costs and challenges involved, than joining a political party or a particular campaign to lobby for change.
Kenyans are thus not foolishly litigious. Instead, going to court is a means of asserting a commitment to the Kenya that people want.
It is also a strategy that can compliment or provide an alternative to formal political channels, which many Kenyans trust even less than their Judiciary.
Gabrielle Lynch is an Associate Professor of Comparative Politics at the University of Warwick, UK ([email protected]; @GabrielleLynch6)
