alexa Only solution is to force out these leaders - Daily Nation

Only solution is to force out these leaders

Saturday February 28 2009

By PHILIP OCHIENG'

In terms of the present controversy, “extra-judicial” is just another way of saying that a killing is illegal. But doesn’t that mean that some killings are legal? Of course. And that is the crux of the matter. It is that every civilised community needs a system of punishment for those who offend its rules.

Mutual benefit is the evolutionary “purpose” of all social living and order is its most important instrument. Therefore -- as we can see in every beehive and inside every anthill -- every social species lives by certain definite rules which are what, among human beings, are called law.

It is to standardise both the laws and the set of punishments that every civilised society empowers the state not only to regulate the laws but also to do the punishing. In the constitutions of civilised societies, only the state can imprison, impose a fine on or hang a culprit.

But the state is too amorphous to be thus licensed to inflict such “legal pain”. Neither the Cabinet nor the Army nor the civil bureaucracy nor yet – which is what is germane to our topic – the police can constitutionally impose a punitive measure on any Kenyan.

Because we are so civilised (!), we authorise only one central institution to do all the punishing for us. Neither an individual nor every organ of State has the right to directly punish whoever offends him/her/it. If we all enjoyed such a right, we would immediately degenerate into anarchy.

Therefore, every individual or group or organ of State with a complaint must go through that institution for arbitration. Only it can decide, from the evidence adduced to it, to inflict pain on a party. If such “pain” is death, it is the only one that qualifies as a “judicial killing”.

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It is called so because it has been authorised by the judiciary, the one and only organ of state which the constitution has given the power to kill or otherwise punish in the name -- and for the good -- of that society. Anybody else who takes such an action is taking the law into his own hands.

Mortal crime

Any authority or organisation other than the judiciary which kills or confines or extorts ransom from any other individual or group or the State as a form of getting even, or even in the name of fighting crime, is violating this normative postulate of collectivity and, therefore, committing a mortal crime.

That is why, even where a policeman catches you “in the act” – his job is only to arrest and take you to a court of law. If he clobbers or kills you, he has usurped the judiciary’s work. He has acted as the prosecution, the judge, the jury and executioner and made a travesty of our alleged “separation of powers”.

Let us agree that many “suspects” -- as our newspapers call even those caught in the act -- are armed and extremely dangerous. But how often have policemen committed foul murder and then fraudulently claimed that they were acting in self-defence? Who was there to testify to the truth?

A chief law officer like the attorney-general -- especially if his mind is as legalistic as John Whyatt’s or his successor Charles Njonjo’s -- should know much better than ordering his policemen to “shoot to kill”. For to do so is to reduce the judiciary to a laughing stock.

Yet, although our police officers commit this vile crime daily, I have never heard even a suggestion by Chief Justice Evan Gicheru, Attorney-General Amos Wako and Justice Minister Martha Karua that Police Commissioner Hussein Ali should be arrested and brought to book for breaking the law.

That is why Mr Gicheru, Mr Wako, Ms Karua and Mr Ali must be seen as accomplices in the act, the police executioners merely as agents acting with the licence once issued to them by Mr Njonjo -- that illustrious ancestor of Mr Wako.

That, too, is how the UN sees it. This is remarkable. When the UN -- which is usually extremely careful with its language against member states -- condemns you without mincing any words, your guilt must be dripping like blood through every intestine.

But if you hope that Mr Ali, Mr Gicheru, Ms Karua and Mr Wako are about to resign, let me refer you to Mr Samuel Kivuitu.

The newly-rich consumer class just has no sense of shame. Nothing will ever bother their conscience even in the face of the most terrible accusations.

The only solution is to push them out. But I leave that to our self-appointed civil society organisations.

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