Tobiko’s quest likely to be an exercise in futility

Sunday March 6 2016

Director of Public Prosecutions Mr Keriako Tobiko at Milimani Law Courts, Nairobi. His quest to abolish the death penalty may be an exercise in futility. PHOTO | PAUL WAWERU | NATION MEDIA GROUP

Director of Public Prosecutions Mr Keriako Tobiko at Milimani Law Courts, Nairobi. His quest to abolish the death penalty may be an exercise in futility. PHOTO | PAUL WAWERU | NATION MEDIA GROUP  

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One problem of our attitude to the law is that all our concepts of social propriety come from two completely contradictory sources, both imposed on us through European colonialism and education. The one source is civil (the statute); the other is mainly religious (the code of ethics).

That is the only problem with the proposal by our Director of Public Prosecutions, Mr Keriako Tobiko, to abolish the death penalty. Indeed, to my mind, that kind of punishment should have gone zamani za Harun al Rashid of Baghdad – to use a Kiswahili idiom once common along the coast and on Zanzibar and Pemba.

Why? Because, ideally, to reform a citizen’s character and behaviour in order to bring him or her back to line with the objective aims of his or her society should be the primary purpose of all punishment. The death sentence just cannot serve that ideal because it denies all convicts the chance to re-humanise themselves.

Our religious attitude to punishment is taken directly from the Old Testament, a book which, because it stems from the days when all human societies were barbaric, remains characterised by incredibly primitive teachings from which a civilised society cannot learn anything intelligent and socially useful concerning crime and punishment.

No society today will make and try to impose a law which prescribes a tooth for a tooth, the stoning of dissentient individuals to death, the chopping off of a thief’s hand – even the alleged teaching by Jesus that, whenever your male organ rises in desire for a woman, you should chop it off – practices which are common to all human societies during their barbaric periods.

Yet all those barbaric teachings remain prominent in the books of all the three theistic religions of the West. In literature, such barbarisms remain the fulcrum of Judaism, Christianity and Islam. That is the central problem with the books of practically all religions, especially the theistic ones.


The reason is obvious. It is because the Old Testament, the New Testament and the Koran were written when the respective societies were restricted to a certain mode of thought governed by a certain mode of life and of exchange, a mode which, being common to all barbaric societies, necessarily produces such inhuman punitive prescriptions as dot the pages of both testaments.

Today the problem with all the religious books with such ancient roots is that all of their theo-moral teachings directly contradict the modes by which all the leading members of such societies live, especially the econo-intellectually leading classes. From the religious pedestal, they seek to perpetuate certain ancient modes of thought and conduct which the 21st century level of knowledge and technique has long ago condemned to death.

They seek to impose on all epochs and all human communities the thoughts and codes which a properly educated 21st-century human being can understand only from the knowledge that the Jewish scribes were writing with very primitive understanding of human nature and human history.

No. I do not totally reject capital punishment. What can a society do whenever – despite tangible sanctions – an individual shows no sign of reforming but goes on robbing, raping or murdering? I haven’t got the foggiest idea what social purpose the system can serve by imprisoning one for the rest of one’s life.

What seems self-evident is that such a prisoner is no longer a human being in the proper sense of the term. Imprisoned for life, he/she no longer has a chance to do anything for himself/herself and for society. He/she can only burden society some more because society has to provide for him or her in all ways.

But unless and until Mr Tobiko requires that such primitive punitive prescriptions be erased also from the pages of all religious books, especially of the Bible and the Koran, his will be an exercise in futility.