Let justice be proof law is not an ass

When Mr Bumble, that poor victim of a domineering wife in Charles Dickens’s Oliver Twist, was presented in court because the prosecutors believed that his wife, in committing an illegality, must have acted under his instruction, he described the law as an ass. In the animal kingdom, an ass is believed to be low on the wisdom scale; it is a character to which logic is illogical and useless.

“If the law supposes that,” said Mr Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”

I do not wish to go into the inexperience of bachelors and lessons married men learn.

But events of the recent past in judicial circles point to the tragedy of not correcting the asinine nature of the law and how it is applied two centuries since Dickens’s eye-opening revelation in 1837.

QUASHED

On February 8, the Court of Appeal sitting in Nairobi quashed a life sentence handed to Elgiva Bwire Oliacha by the High Court for terrorism-related offences.

Court of Appeal Justices Daniel Musinga, William Ouko and Gatembu Kairu based their decision on the fact that the prosecution had failed to table P3 forms of two of Oliacha’s victims. Because of that oversight, a convicted terrorist will shortly be released back to the society, a free man.

A little background will help us to understand how Oliacha and the three judges got to the Friday date.

On October 24, 2011, Nairobi witnessed a twin terror attack. On that Monday morning, at around 3, a presumed customer knocked at the door of a bar on Mfang’ano Lane, asking to be let in to quench his thirst.

GRENADE

His prayer was answered only for him to get in and detonate a hand grenade. A few metres away, at a crowded matatu terminus on Race Course Road, near the OTC bus stage, another grenade was exploded.

A man died and 28 other people were injured.

The following day, police arrested Oliacha, who after interrogation, confessed to being the mastermind of that fatal attack. Oliacha, going by the alias Mohammed Saif, led the detectives to his house in the city’s Kayole estate, where an arsenal, including an AK47 rifle, a sub-machine gun, two revolver pistols, two automatic pistols, 717 bullets, 1 SNG machine gun magazine and 13 hand grenades, were recovered. Two days later, Chief Magistrate Grace Ngenye found Oliacha guilty of being a member of a terror group, engaging in organised crime and inflicting grievous harm and sentenced him to life in jail.

Oliacha is reported to have agreed with the magistrate, who has since become a judge, on everything other than the idea that he should be punished. He confessed that he was a terrorist, had killed and injured people and that was trained in the skills of administering terror.

DANGEROUS

He was not even sorry for his acts of terror. In one of his court appearances, he said: “I am just happy, a sad man is a remorseful man.”

But he disagreed that he should spend his worthy life behind bars. And, it seems, the Court of Appeal agreed with him!

The tragedy is that criminals get off the hook due to technicalities in law, while some of those kept in prison are innocent suspects not lucky enough to get smart lawyers, as dangerous elements continue roaming the streets.

This raises the question at whether the law is meant to serve the people and the community, or the other way round.

At what point should judicial officers and courts disregard the letter of the law and pay more attention to the spirit where the two seem to contradict?

Shouldn’t reason prevail where the greater common good supersedes the assumed rights of an individual in the wrong?

It is time courts redeemed the society from the danger of the law that is an ass.

When the defenders of the law, the courts and judges, put little or no emphasis on the potential danger of some acts and actors before them when giving judgment, society is likely to resort to alternative justice.

Lawlessness becomes more attractive where the law does not result in justice for the majority.

When the State and other powerful actors begin to disregard court orders, you might consider examining the court’s preceding behaviour.

Let our experience with terror suspects freed in the past be the opener as Mr Bumble wished for our bachelor eye.

Mr Mugwang’a is a communications consultant based in [email protected]. Twitter: @Mikeysoul.