The 'Eastleigh execution' approach leads to a reign of terror

Friday April 7 2017

By LUIS FRANCESCHI
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A few days ago, police officers assassinated suspected thugs in broad daylight in Eastleigh. Hundreds of witnesses who were present recorded video of it that went viral within minutes.

These thugs were not innocent passers-by. They had been stealing, and their scandalous social media pages showed a sad picture of the stuff they were made of. They were not blameless.

It is deeply annoying that such social pests should infect the whole city with their deviant behaviour, but they were murdered in broad daylight, without trial.

The killings by police have triggered a hullaballoo. A bitter discussion on justice, law, rights, execution and security has plagued newspapers, tweets, blogs and opinion pages.

The discussion has focused on a sort of opposition between the two contradicting poles of law and justice, in which law and justice appear to be in contraposition. Apparently, we should choose one of them and discard the other.

Is that so, or is this a superficial approach to such a grave dilemma?

Those advocating for law are quick to quote Chapter 4 of the Constitution of Kenya, principles of administrative justice, fair trial and presumption of innocence, criminal law and all the principles of justice that lawyers learn in the classroom.

LAW VERSUS JUSTICE

Advocates of justice, on the other hand, are focused on quick, immediate and efficient remedies to the widespread thuggery on our streets.

They want accountability at any cost and argue that our deficient justice system cannot deal efficiently with crime.

This discussion is fixated on the visible symptom of a deeper, sadder reality that has persisted for many years in our legal practice and education. It is the manipulation of the law, where law has turned into a convenient tool for justifying anything a client asks for, or anything a politician wants.

Thus, law has mutated from being a tool of justice to being a tool for justification.

This lie and fallacy has caused the slow and insidious divorce of law and justice and contaminated our legal education. We stopped teaching justice as the aim of the law, and taught our students to use the law as a way of life, for their advancement and enrichment, and for the convenience of the client.

We forgot about truth and justice and the most successful lawyers became the ones who won the most cases, no matter how they did it.

KANGAROO COURTS

The Great Hall of Justice at the Peace Palace in The Hague, where the International Court of Justice congregates and reads all its judgements, has two huge, beautiful stained-glass artistic windows. They read, ‘Veritas et Justitia’, meaning ‘truth and justice’

This Court, like the whole UN system, was set up to prevent a repeat of the great wars that claimed more than 80 million lives in a century that also witnessed the greatest scientific advancements and developments in the history of humanity.

The 20th century was one of contrasts. It is not by chance that in the 20th century, man went from riding mules and horses to driving cars, planes and rockets, from earth to the moon, from charcoal to the microwave and from the telegraph to email.

Yet, in this same century, we had more deaths because of war than all the preceding nineteen centuries put together. In this same century, we suffered the most radical and cruel tyrannies of our modern history.

Kenya’s thirst for justice and fairness has developed quickly since 2010. We get annoyed when thugs walk away freely, but it is extremely naïve and short-sighted to think that true, sustainable justice and development will happen without law.

Quick-fix solutions, kangaroo courts and extrajudicial killings are justified by those who divorced justice from law, by the manipulators of the law for whom justice is the same as justification.

They will only reflect and change their views the day they face a rogue policeman ready to shoot at them, their spouse or their child. 

The mob justice approach always backfires because it is based on the vices of revenge, hatred and rash judgement. No good can come out of such evils. You never do evil so that good may come of it.

Violence always engenders more violence, to the point of destruction. The cost of violence has never been accurately quantified because its cost goes beyond finances or monetary losses.

The effects of violence appear not only in the economy but also on the social fabric. Violence dehumanises societies, removes the inhibitors of cruelty and unleashes the free reign of terror.

ROBESPIERRE’S GUILLOTINE

Maximilien Robespierre, a Frenchman, was one of the greatest advocates of a violent, bloody resolution to the critical political problems at the start of the French Revolution.

For Robespierre, “slowness of judgments is equal to impunity” and “uncertainty of punishment encourages all the guilty.”

He argued that if 200 key stakeholders of France’s political elite were killed, all their social and political challenges would come to an end. Sadly, he killed more than 20,000 people until this violence caught up with him. He and his companions were likewise guillotined.  

Robespierre justified violence and willingly witnessed the unhappy invention of the guillotine, the right tool with which to kill more people in a fast, efficient manner, with less drama. He justified violence right to the end, until it chopped off his own neck.

He had created a monstrous system to attain justice without the law, but only achieved anarchy, a system that devoured him, and a repeat of Mary Shelley’s Frankenstein: “You are my creator, but I am your master; - obey!

Violence as a system is just like turbulent waters; it does not follow any regular physical pattern and cannot be easily measured.

Scientists have tried using Acoustic Doppler Current Profilers (ADCPs) without accurate success, and what cannot be measured cannot be controlled.

Those who are happy about the Eastleigh incident (and I still hold them in high regard and respect their opinion) should remember Robespierre and his guillotine.

Violence as a justice system is an unsustainable contradiction; a contradiction born of the absurdity of divorcing law from justice and marrying it to justification.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi