Historical injustices taught us how to defeat the rule of law

Friday July 19 2019

We like the rule of law in abstract but we hate and despise its application in our daily lives and relationships. We preach the rule of law from top to bottom, in schools, in conferences, in churches, in corporate and everyday politics. Yet, we easily and happily disobey laws from bottom up.

Take a quick look at Nairobi, one of the best originally planned cities in Africa. Just think for a moment of any matatu terminus around rich or poor Nairobi. The place may be tarmacked or potholed, with or without signage, with or without policemen… It could be Westlands, Lavington, Juja Road, River Road, Nairobi West, Kitisuru, Donholm or Buru Buru in any of their phases.

Think also of road signs, forests, road reserves, quite a few buildings, particularly the so-called Kikuyu-Gothic architecture prevalent on Thika Road, Zimmerman, Wangige, Gachie… Picture the times you, yourself, have broken any law because there was no camera or no policeman on sight.

We dislike the law, but love our customs

It is evident. We have a social disdain for the rule of law…but not for any rule of law. Think too for a moment of other laws; those customs revered so sacredly by different communities across Africa. In-laws in Western Kenya would never dare to spend a night in the house of their father in law. Think also of any man from central Kenya who may dare to go on without circumcision…he risks facing the knife in the middle of the street, and it has happened to more than one in Karatina.

We scorn some laws but we respect others. We revere our traditional laws, even if nobody is looking at us. Instead, we easily mock police instructions, ministry directives, acts of parliament…anything unless a gun is pointed at us. Why?


Prof Patricia Kameri-Mbote, my teacher and mentor, answered this question at Taifa Hall, during the presentation of her higher doctorate (LL.D.) She was referring to wildlife and forests when she gave us the key of our legal drama. She said, “The militarisation of wildlife areas and forests happens when we have more people wanting to break the law than those protecting it. This is a result of our colonial days when breaking laws was a matter of survival for Africans.”

The colonial laws were there to favour the white master

I found this statement to be deep, true and sad. The legal system handed down by the colonial masters was a tool of oppression; it was the excuse to keep Africans down to increase social advantage, pleasure and bigger profits for the coloniser.

This is how Africans were arrested and fined if they uprooted tea or coffee trees, if they sat on the whites-only section of a bus, if they walked at night in white neighbourhoods. Life and education were segregated; freedom of movement was restricted and freedom of association was carefully monitored.

Mercy Muendo published a fantastic piece some years ago in The Conversation. She argues that some of these laws can be “traced back to legal ordinances that were passed by the colonial government between 1923 and 1934.”

Was I born a vagrant, vagabond, barbarian, savage or Asian?

For example, the “1925 Vagrancy Ordinance restricted movement of Africans after 6pm, especially if they did not have a registered address.” These laws differentiated white settlers from “other created categories of persons known as ‘vagrants’, ‘vagabonds’, ‘barbarians’, ‘savages’ and ‘Asians’.”

Mercy also mentions the “Witchcraft Ordinance of 1925 (which later became the Witchcraft Act) outlawed any practices that were deemed uncivilised by colonial standards. The provisions of the Act are ambiguous and a clear definition of witchcraft is not given. This has made it easy for authorities to prosecute a wide range of cultural practices under the banner of witchcraft.”

Owaahh, in one of his fascinating posts on the seven most interesting but obscure Kenyan laws, also quotes the Asian Officers’ Family Pensions Act (and Asian Widows’ and Orphans’ Pensions), which expressly excluded Asian employees from the lucrative European Pensions laws (of course, Africans were not entitled to any pension whatsoever.)

Prof Makau Mutua also argues in his article “Africa and the Rule of Law” that the Western concept of the rule of law cannot be simply transplanted to Africa for it would lack legitimacy and fail to achieve social transformation.

Divide and rule

The colonial idea was to divide and rule, to separate the races and create “safe heavens” for the invading powerful minorities. The law turned every white person in a potential law enforcing agent. Although not all whites liked and supported this status.

This is the legal system we inherited at independence. It was organised, clean and neat, but designed to segregate. It is interesting to know that many of the ordinances in force in the colonies were never law in England. That would have been unacceptable for the common English farmer, yet in Africa they were enforced and people went to prison for violating them.

In post-independence Kenya, we missed the historical moment to address such injustices. It was not a matter of revenge, or ransacking the many benefits modernity had brought to the land. It was rather a matter of redoing the social tapestry; of rebuilding the legal fabric by airing the compost of unfair laws and regulations passed by a racist and repressive system.

The shifting of masters without looking into matters

We simply shifted masters. We replaced the oppressing white colonial master by a local ruler, and kept on enforcing the same oppressive laws. It was no longer racial discrimination but inter-African, ethnic and financial. African against African…the have against the have-nots.

The task ahead is huge, humongous. It cannot wait. Africa will not survive another century under the current legal system. The time to innovate, redraft, rethink is long overdue.

We have developed the habit of breaking the law. In our day-to-day affairs, only militarisation can keep “law and order”. This is risky and expensive. It is unsustainable. We want to have the parks of Copenhagen, Singapore’s clean streets, Switzerland’s organised public transport system…this is simply impossible without a culture that is premised on the rule of law.

When the masses do not understand the purpose and benefits of such laws, a neat urban culture can only be created by force, by pressure, and as soon as the pressure is released, we go back to our daily pandemonium…to business as usual.

Prof Luis Franceschi
Founding Dean – Strathmore Law School
[email protected]