The idiotic, foul and cheeky side of law

Sunday November 18 2018

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The Criminal Justice System Audit published by the Judiciary through the National Council on the Administration of Justice (NCAJ) in 2017, found that Kenya’s Criminal justice system is largely skewed against the poor. FILE PHOTO | NATION MEDIA GROUP 

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A fortnight ago, I chronicled some pronouncements by judges in cases before them using descriptive language liked or disliked by the persons at whom the words are directed. However, the concern is not always just for judges. Sometimes even the law as written can be a source of problems in interpretation, bewilderment and even humour to any litigant or reader of it.

This piece shall highlight some of the statements in written law which can be found to be amusing in their literal reading and on application in court from criminal law statutes.
The words “idiot” and “imbecile” are never used in polite circumstances and would normally attract outrage if used by anyone against another. However, there are persons whom the law refers to as “idiots and imbeciles”. The Penal Code in Kenya recognises a felony known as defilement of an “idiot” or “imbecile”. It states that any person who knowingly has or attempts to have carnal knowledge of an imbecile or idiot shall be guilty of an offence.

The unfortunate bit about this is that the two words are not defined in the law. Courts, therefore, have to rely on ordinary language dictionaries to define this term and relate it to the person who has been defiled, before a conviction is handed. The old dictionaries define an “idiot” as a person afflicted with profound mental retardation. An “imbecile”, on the other hand, is defined as a person with severe mental retardation.

These definitions arise from the Old English Law and specifically the Mental Deficiency Act of 1913 of the United Kingdom. Reference to any person as an “idiot” or “imbecile” is not language that would be used to describe such a person in this century. I suspect more polite and respectful terms would be used — something akin to a person with mental disorder as used in Kenya’s Mental Health Act.

The difficulty in prosecuting these cases in the Kenyan context arises almost comically whenever, as required by the Constitution, the proceedings have to be translated to an accused person in the language that he or she understands. In Kiswahili, for instance, some court clerks applying their best language translate the “idiot” as mjinga which, more appropriately, would imply a “fool”— sometimes sparking huge laughter even from the Judicial officer. Translated into most languages in Kenya, the same irony would arise for lack of equivalent meaning.

The funniest story I ever heard of this was when a party seeking divorce called her former spouse an “idiot” in court. The judge presiding over the case quickly reminded the party’s advocate to warn the lady that her admission that she had four children with an idiot was confession of a serious offence for which she could be sent to prison.

The other offence that is rarely spoken about in the penal code is “cheating”. This is the offence of obtaining property by the use of a device or trick so as to obtain something for a higher value than it is truly worth. This is an offence often meant to punish dishonest traders. Examples include those who may interfere with weighing scales or exaggerate the value or quality of something.

An example would be a person who sells 12-carat jewellery by disguising it as say 18 carats of gold. At its core, the offence is one of fraud in trading but with a generalised description that implies something else altogether. In short, the offence of cheating has nothing to do with infidelity in romantic relationships, but often strikes most students as such when this offence is discussed in criminal law classes.
Most people know about the offence of “driving while intoxicated”. There would be no doubt about the wisdom in not driving in an intoxicated state. No right-thinking person would doubt the wisdom in the offence of “drunk and disorderly”. The clear issue here is that being “drunk” in itself is not an offence.

The issue is what a person does while in that state of drunkenness. Why, then, is there an offence known as “drunk and incapable”? The Alcoholic Drinks Control Act states that any person found to be “drunk and incapable” in public or in licensed premises or in a hotel may be arrested and brought to a magistrate for trial.

This issue has amused law students and beguiled law courts for years. The courts have settled this offence to the effect that being “drunk and incapable” is that state in which an individual has consumed alcohol to the point of being unable to either walk or stand unaided or is unaware of their own actions, or unable to fully understand what is said to them. In the United Kingdom, from which this offence and its description were adopted, any person who is “drunk and incapable” without being “disorderly” is meant to be protected.

They are taken into police custody until they sober up whereupon they are released. It is a matter of irony that in Kenya, being “drunk and incapable”— and maybe asleep — is in itself an offence.
No less amusing is the offence known as “fouling the air”. There are often supercharged arguments among students whether this offence is aimed at flatulence. It reads that “any person who voluntarily vitiates the atmosphere in any place, so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, is guilty of a misdemeanour”. I am not aware of anyone who has ever been charged with this offence on account of flatulence despite being witness to several threats by students to initiate charges against each other while in law school. In 2011, Malawi attempted to make it an offence to foul the air in public.

But the US state of Florida must take the cake for this one: It is illegal to pass wind in public on a Thursday after 6pm in Florida. In Kenya, it does appear that this law may be intended to deal with the public nuisance of air pollution such as leaving an animal carcass in public.
Back to speculation, when students began to cook in their campus rooms, law students would often threaten those who were cooking matumbo (tripe) or omena (silver cyprinid) in their rooms with prosecution for fouling the air. None of these landed in court but could well do so especially in a community of vegans objecting to the smell of animal products being cooked.
The final offence that I will point out, and it gives some humour but has a dark history, is that known as “cowardice”. Do you know that the Kenya Defence Forces Act and indeed laws dealing with the military make it a criminal offence if one acts cowardly while in combat? It says that if a soldier runs away or surrenders during combat, abandons his or her station or behaves in any other manner showing cowardice, the offence could lead to life imprisonment upon conviction.
Put simply, a uniformed soldier in combat is not allowed to show cowardice as known in local usage. This has been a very serious offence throughout the history of military law. During the First World War, a number of British soldiers accused of cowardice were convicted and sentenced to death.

The positions on this has evolved with medical research which now shows that this offence is unfair and that some of the persons who were convicted would today be treated for post-traumatic stress disorder otherwise known as shell-shock. This research reveals that what the law defines as “cowardice”, and punishes as such, is actually an illness deserving of treatment.
The conclusion here is that the law books themselves contain language that is used in special ways which from colloquial usage can be amusing.
In short, do not call your spouse or paramour an “idiot” even in circumstances of grave provocation, thou shalt not “cheat” in everything you do and even as you drink, ensure you remain “capable” (of what I don’t know), do not “foul the air” whether by yourself or by choice of cuisine and lastly do not act “cowardly” if you are a member of the defence forces.
Sekou Owino is head of legal affairs at Nation Media Group.