The law on firearms and gun culture in Kenya

Over the weekend of August 3, 2019, a mass shooting at a Walmart store in El Paso, Texas, resulted in the death of 22 persons and several injured. Hours later, another shooting occurred in Dayton, Ohio, in which 10 people died. The cliché thinking has always been that this gun culture of mass shootings is a problem reserved for the United States owing to its liberal gun possession laws.

GUN ADVOCATES

Last weekend, another shooting occurred in France when a customer fatally shot a waiter at a restaurant. The reason for this attack was that the customer’s order was not delivered quickly enough!

In case one was tempted to argue that the use of guns by civilians on other citizens is a majorly western problem, this was proved untrue on August 17, 2019 when a motorist shot the driver of another vehicle and killed him in Kisumu town following an altercation about a car parking space.

These shootings occurred in different sociocultural contexts but bring out what may appear to be the same public safety question, how should public citizens holding private firearms be regulated to prevent misuse?

The entitlement to own firearms in most countries including Kenya is mainly a privilege accorded by the state through licensing processes. In the United States, however, gun ownership and the resultant gun culture is a big public order issue for the reason that gun ownership is rooted in the constitution. Unlike most other countries, the ownership of a gun, is a constitutional right, not a privilege accorded by the state.

The second Amendment to the United States constitution reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This gives the citizen an entitlement to carry firearms as a matter of right. The meaning of this amendment has been contentious in the United states. Those court who assert that the right is unassailable, known as gun rights advocates, argue that it is an absolute individual right meant for every citizen to own a gun for his or her protection.

SAFETY CONCERNS

Opponents of the absolute gun rights advocates seek regulation of gun ownership. They contend that the true context of the amendment must be with regard to a public security force, hence the word “militia”. They insist that laws need to be passed to regulate who and how and the type guns may be possessed by citizens. They frown no good is served by permitting citizens to possess the highly sophisticated military grade guns. These types of guns are automated and are therefore the favourite of mass shooters. To demonstrate the concern here, the shooter in the incident of 4 August, 2019 in Dayton Ohio was killed by the police within 32 seconds of his firing the first shot. But by then, he had killed ten persons and injured more than a dozen.

The gun advocates are fervent that the second amendment right is absolute and for each individual untainted by any regulatory interferences. This reasoning holds and asserts that being a right, it cannot be regulated in the number of guns an individual may own, or the calibre and even on the use of the guns whether for recreation or exclusively for self-defence in the home. Put simply, they, argue, that They have the right to possess as many guns as they fancy and of such power as suits individual taste. Suffice it that some states do not require a licence for a person to openly carry a gun.

Attempts have been made at passing laws to regulate gun ownership and use. They state, in light of the mass shootings, that the public safety concerns arising from mass shootings requires legislation to control possession and care for guns in homes. But this has not always been successful. In 2008, the United States supreme court struck out a law which had banned the possession of hand guns and also provided for safe storage of guns in the homes. The court held that this ban was unconstitutional for restricting the individual’s right to possess a firearm in the home for self-defence. The Court said however that some regulation such as prohibition of ownership by convicted persons and the mentally ill or possession in schools or government buildings may be permitted.

OPENLY DISPLAY

In July, 2018 a US Federal Appeals Court held that the second amendment guarantees a right not only for the individual to own a gun outside the context of a security force, but also the right to openly carry it in public. In the context of the mass shootings that have been prevalent in the United states in the recent times, this decision was extremely contentious.

In Kenya, the position may be different in the sense that there is no constitutionally direct right to bear firearms. Instead the issuance of firearms is a statutory regulatory issue controlled by a government bureaucracy known as the firearms licensing board. A Kenyan may therefore not claim entitlement to a gun as a right of any kind leave alone a constitutional right. There is a process that requires background checks, training and approvals by the security agencies before a person may be licensed to purchase and possess a firearm. It is assumed that the authorities conduct background checks on these persons before the license is issued. This is one area that is particularly problematic in the USA due to opposition by the gun rights advocates.

The condition precedent to licensing in Kenya is that the applicant must give a cogent reason that justifies that possession of firearms that exceeds that of the ordinary individual. In spite of this, licensed gun ownership has become a club of privilege with the persons obtaining these licenses often being politicians, their cronies and families and connected persons. The gun culture that has developed in Kenya is therefore one that shows one to be a member of a class. It obtained from the mouth of no less than a cabinet secretary that these licensed gun owners, mostly the wannabe nouveau riche of Kenya, openly display their guns in public and in social places as an indication of their status and in some cases for intimidation of the public. This is despite the standard condition of licensing in Kenya that the licensee must keep the gun concealed while in public.

SOCIAL CLASS

Irrespective of the sources of the ownership of guns in Kenya or the USA, whether as a privileged licensee or a citizen’s right, there is a common thread in the two countries gun cultures. The first is the human tendency to abuse instruments and privileges which manifests itself in shooting of innocent persons. The second is that there is an affinity for guns as a show of power. In the USA, as a constitutional right, the National Rifle Association, a lobby of gun manufacturers and gun enthusiasts hold conferences in which they assert their second amendment rights with boisterous aplomb. This is no different from the displays that the Cabinet Secretary complained about as chronicled above — viewed as an indication of social class.

Even though a Pew Research revealed that up to 30 percent of Americans own a gun as opposed to Kenya where it was reported that about just 10,000 guns were licensed during a licensing clean up this year, the magnitude of Kenya’s gun problems appear to be getting to that of the United States and there will be need to have gun control legislation that goes beyond mere licensing procedures. There is no doubt that there are gun holders in Kenya, just like in the USA, but are unsuited for that kind of lethal equipment. In Kenya’s case, the situation is worse because they are supposedly vetted by the regulatory authority.

The writer is head of legal affairs at Nation Media Group