States and the institutions within them do not run themselves. They aren’t on autopilot. It’s human beings – living, breathing men and women – who run the state. That is why the best and most ethical constitution and laws aren’t a substitute for the human mind and touch. It’s people who must submit to, and internalise, the state’s and society’s norms in order to carry them out with fidelity. The failure of either the elite or Musangi to conform their minds and conduct to agreed norms is usually the undoing of society. In my view, no social norm is more important than public shame. Public shame – not law – is the difference between the rule of law and the rule of man.
In societies of yore, public shame had a mythical spell. The curse of death, or damnation, loomed large if public shame befell you. To avoid the worst, you would be cast adrift to the hills like a pariah to be cleansed of the evil within you. The banishment from society and civilisation would last until your wrongs had been purged. In others, trial by ordeal – typically a form of torture – would be imposed as a judicial verdict to atone for public shame, or criminal liability. In modern society, however, the notion of public shame has vanished in virtually all but a miniscule of societies. Where public shame was a mandatory sanction, today it’s nothing but a mere moral suggestion.
Real public shame isn’t imposed by society, or any of its institutions. It’s an act of personal jihad, an individual struggle within self to atone for the dishonour he, or she, has brought upon society. Historically, the Japanese harakiri was the starkest form of self-punishment out of public shame. Harakiri or seppuku literally refers to the cutting of the belly or the abdomen as a form of ritual suicide through disembowelment. Although harakiri was typically reserved for the military nobility or officer corps in the Japanese medieval society, it evolved into a practice by common people to restore dignity and honour to their families after disgracing themselves. The individual would take a sword and plunge it into their belly, fatally cutting it open.
In some African cultures, including Ethiopia, suicide out of public shame wasn’t unknown. However, harakiri and other forms of self-killing out of shame shouldn’t be mistaken for self-immolation, which is a form of protest against society. In the modern era, a number of Asian leaders have committed suicide out of shame after being disgraced. This has happened in the past where leaders have been credibly accused of corruption. However, no African serving or former head of state has ever killed himself, or herself, after being hit with corruption allegations. Public shame, which ran deep in pre-colonial African societies, is no more. The idea of a leader taking his own life as consequence of failure is unknown in post-colonial Africa.
The more common form of taking responsibility for the failure of leaders in Asia and some European countries is political self-decapitation. In others, leaders who have lost confidence because of corruption scandals, or their inability to deliver on their election promises and party manifestoes, resign in disgrace. Criminal indictments, even before a trial, or conviction, also lead to resignations. This is common in Japan, South Korea and several European democracies. It’s not so common in the United States where the scandal-ridden Donald Trump is impervious to public shame. But Mr Trump isn’t alone in his mendacity. The term public disgrace is alien nomenclature in the tongues of most African leaders. Their evil vicious twins rule their moral universes.
Public life is barren of morality and shame because of Kenya’s political culture. Leaders, many of whom were born dirt-poor, have become our worst nightmare. They have joined those who were born with a silver spoon in their mouths to loot our coffers and plunder our resources with utter abandon. They speak and act as though they own us. Nothing – and no one – gives them pause. They smile broadly when arraigned in courts of law on corruption charges. They believe they own the courts and those who investigate their criminality. Why else would one smile mockingly while under arrest? That’s the picture Kiambu Governor Ferdinand Waititu and his wife Susan Wangari cut at the Milimani Law Courts.
It’s not clear where it all started going south for us. Our elite weren’t always this crude. Universities, like JKUAT among many others, apparently dish out fake degrees like cheap candy. National and county government officials conspire every minute to fleece the taxpayer of every shilling. Students cheat at exams with impunity. Judges wilt or wobble under pressure from the state and corrupt mandarins to defeat justice. Lawmakers act like the proverbial pigs at the trough. How can we recapture public shame? First, we need to sanction offenders without pity. Second, we must refuse corrupt leaders audience. Lastly, we must look in the mirror.
Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua.