Impunity is the big enemy that we must fight

In the 1980s and 1990s as human rights activists, we believed that those at the pinnacle of political power practised widespread impunity; they were above the law. The country’s second liberation struggle was, therefore, largely about restoring the rule of law and governance under a just people’s constitution so as to guarantee equality before the law.

In any given country or society, there will exist a nation, state, nationalities, community and non-state organisations. Norms bring these entities into existence while guaranteeing continued organisational growth and development. These standards are ethical, moral, spiritual, custom, mores and traditions, etiquette, cultures, policy, legal and so forth. The degree to which the people’s groups express fidelity to the commonly held normative values determines the robustness of relevant societal sectors.

MEGA CORRUPTION

Broadly speaking impunity has been described as “freedom from punishment for something that has been done that is wrong or illegal.” When one believes they have money and power and hence they can wilfully ignore the law or other societal norms, they are practising impunity. In legal parlance, impunity is used often to describe those who not only act in disregard of the law, but especially those who infringe on human rights knowing that no punishment is likely to follow.

For example, in 2008 the Kenya National Assembly failed to pass a law under which those accused of gross human rights violations could be tried domestically, as a result of which Kenyans had to be arraigned abroad at The Hague.

In Kenya, Africa and even worldwide it is the political leadership which is often accused of impunity. The Kenyan upper class leadership has been accused of the open practice of mega corruption. Resources lost in graft could easily have catapulted Kenya to the same level as the Asian Tigers.

President Uhuru Kenyatta’s bold fight against this genre of impunity is attracting massive resistance. Even as the fight against the vice rages, fresh corruption pops out on a regular basis.

Elected leaders and public officials routinely discriminate especially on the basis of ethnic lines. Even when the law restricts, political parties and coalitions are formed on ethnic lines. Counties employ and transact other businesses on ethnic lines. Citizens prefer to gravitate towards their counties of origin. We are far from establishing the Kenyan nation.

PRIMITIVE ACCUMULATION

Our legislative bodies often pass laws that contradict the constitution. The Council of Governors especially during the first cycle of devolution resorted to courts to challenge offensive laws. The courts have declared some ordinary laws as violating the Constitution. But Parliament, in its tug-of-war against the counties, continues to pass laws which clearly attack devolution.

The Auditor-General year in, year out chronicles episodes in which public funds are misused. Although these funds may be spent ostensibly under the authority of certain laws, prudent spending is not adhered to. Money which could promote the public good is diverted into personal aggrandisement e.g. for unnecessary “benchmarking” abroad and other personal pursuits.

In Kenya and generally Africa of the 60s, 70s and 80s, those responsible for official impunity knew that they could absolutely suffer no punishment. Primitive accumulation, infringement of human rights and so on would hardly be challenged before a court of law. In the 1990s, 2000s and 2010s some change has occurred. Senior government wrongdoers are being unmasked, shamed and, to some extent, sacked or brought to court although they are still finally let scot free.

An area in which there is less scrutiny is the adherence by various leaders to ethical and moral standards. It is unusual in our country and Africa for the citizenry to call upon leaders to vacate office as a result of infringement of ethical or moral norms. Should, for example, a leader be forced to resign because he or she engages in an extramarital affair?

Increasingly, individuals and non-state actors are becoming perpetrators of impunity.

No police man or woman takes a bribe from himself or herself. Bribery and most corruption is a two-way affair. A “tenderpreneur” greases the palms of a government official. When you give a bribe to bypass bureaucratic red tape, you are corrupt. It is not good enough to lament that public officials are corrupt and that you are forced to give bribes. If citizens refused to bribe consistently, Kenya could begin to change. In 2003, citizens began to arrest policemen who were demanding bribes. That awakening fizzled out when it did not receive official backing.

CULTURE OF SILENCE

Other areas of citizen-based impunity are domestic violence and violence against women; child abuse; environmental pollution by those who dump waste haphazardly; hate speech; deployment of propaganda especially through cyber bullying; market monopolies; sexual harassment; incest; discriminating practices against those of other faiths and ethnic groups; spousal abuse; traffic infringements; etc.

Impunity practised by those whom we trust, for example parents, religious leaders, teachers and health personnel, is extremely destructive of our ethical and moral edifice. Particularly the youth may come to think that they, too, can practise impunity if these ethics and morality gate keepers are involved in everyday lapses.

If I know I break ethical and moral norms, I may lack the confidence to challenge transgressions by the high and mighty. Hence the society becomes insensitive to wrong and a “culture of silence” could ensue.

In Kenya, we have begun to witness growing impunity among the youth. Pupils and students are involved in drug and substance abuse, pornography, torching of schools, examination cheating, criminal gangs, recruitment into terrorism, binge drinking and group sex, shirking of responsibilities etc. True, about one third of youth between 13-35 in our country are unemployed or under-employed. Entrance into the culture of impunity compounds the problem.

The county’s leadership at all levels — state, faith, corporate, professional, civil society and community — must frontally address the vice of impunity. We must reverse this culture. When the ethical, moral, spiritual, legal and other norms which define a society and its structures become lax or decay to permit runaway impunity, then that society and its sectors begin to collapse like did ancient world civilisations.

Prof Kibwana is the Makueni Governor.