Law and justice are meant to reflect each other but they never do in Kenya. A recent discussion I had with a magistrate friend of mine on the issue showed most people end up receiving law rather than justice in the courts.
That is partly the problem with a positivism legal system, where the law is interpreted ‘as it is’ without critically considering whether it meets the ever-fluid social demands.
Positivism was the favoured system in Hitler’s Germany, when the law was used to justify extermination and torture of the Jewish people. It was also preferred by the apartheid South Africa to justify white minority rule, with dire consequences for the indigenous black population.
The danger with positivism is that it has the potential of leading to an unimaginable injustice because human rights abuses can be justified by relying on the law as it is. Because the law said so, an unsavoury rule would stand despite the unjust outcome.
When I recently wrote an article in these pages questioning why political parties in Kenya would allow a member implicated in serious crimes such as embezzlement, electoral fraud or murder continue to be a member, my views were received with tasteless vitriol not worth repeating here.
The justification I was given is that the law was at play and needed to be followed to the letter. I am sure such views do not sit comfortably with the thinking of liberal lawyers — especially given the number of criminal offences being committed daily by the political class in Kenya. These range from forgery of academic certificates to electoral and financial fraud, and now murder.
UK’s Labour Party recently expelled its member Fiona Onasanya, MP for Peterborough in England, for lying over a speeding ticket.
This may appear like a simple offence to many Kenyans. But what irked the party was the fact that the said MP had lied to the police and blamed an innocent person as having been behind the wheel to escape punishment.
The punishment, in most cases, would involve earning a few points on the driving licence, which is harmless at best of times. But the lies, as clearly foreseen by the Labour Party, was indicative of the dishonest way the MP behaved and felt it was unbecoming of an honourable member — and she was expelled.
The court equally felt that the MP was to face punishment as would ordinary citizens in similar circumstances and sentenced her to prison. The MP is now on the verge of not only losing her parliamentary seat but also her career as a lawyer as she faces expulsion by the country’s law society.
Lying on a speeding ticket, in the grand scheme of criminal acts, is many scales below that of corruption and murder that our political class find disturbingly acceptable and embrace perpetrators tightly for votes’ sake.
By expelling the MP, the Labour sent the message that people with unsavoury character are not fit to serve the public and, as a party, they did not wait for court’s intervention to act but relied on their conscience.
What we lack in our legal system is the exercise of the principle of conscionability, which supports the notion that the law does not necessarily need to be applied verbatim lest it led to unjust results. At the heart of the principle lies the idea that we need to be guided by our conscience, too, in certain cases where the law allows for acceptance of reprehensible acts which many reasonable people would consider immoral and unethical.
Many of our lawyers can and are adept at cramming and regurgitating articles of law but rarely pose to critique their effectiveness. Perhaps it is a deliberate attempt at obtaining skewed ‘justice’ for those among us deemed to be ‘above the law’, regardless of the level of criminality.
The positivism system is a perfect weapon for the corrupt and dictators, who rely on it to justify their end despite bodies left behind or the living impacted upon unjustly.
It is unthinkable to have political parties embed among themselves a person with questionable characters. It is even more unthinkable to imagine that the law comes to the aid of such a person.
Political parties form one of the government — the Legislature — and it is incumbent upon them to set the best example. In many cases, it is the elected leaders who legislate on our behalf. It does not bode well for the future of a country to have people with little regard for the law to be legislating for the legal system of a nation or worse be the custodian of its constitution.
Such can herald chaos because, due their fraudulent nature, criminals can’t help but think criminally; that is just who they are! The by-product of allowing nefarious characters to run our affairs is explosion of fraud and lawlessness, as witnessed in the recent past.
The integrity bar needs to be raised higher in Kenya.
Ms Guyo is a legal researcher. [email protected] @kdiguyo