Letter and spirit of the law must always be paramount

Ancient warfare among the Meru, according to an interesting history by Jeffrey Fadiman, far from being viewed as evil, was a necessity.

It was the only way a broke young man could acquire cattle for his father, who, in turn, would get him a wife, and give him animals to start his own herd and some land.

It was also a means for creating heroes, champions and legends, a method for getting glory and making your dad, your clan, and, indeed, all people of goodwill, proud.      

This violent lifestyle would have led to the decimation of the tribe and way too much bloodshed.

LAWS

So, over time, a series of clan alliances were built and jurisprudence emerged barring war against allies.

And to limit war damage, a labyrinth of laws was promulgated over the years, banning the burning of houses, the killing of innocents, the destruction of property and so on, so that at the end, warfare took the shape of the second Gulf War: Bloodless conflict.

And the punishment for breaking these laws — woven around witchcraft and a witches’ brew of curses, oaths and superstition — was a hefty fine in livestock — the very purpose for going to war.

To reward courage in the foolish braves who went out raiding for livestock, an elaborate ceremony was organised that was at once savage but also equally authentic.

HEROES

The hero would stand in a circle of his adoring clansmen — men, women and children — in full war colours.

His mother would tear off his cloak and he would be presented, in full glory, to his adoring fans who would shout names of praise at him.

Among these folks, I have been told, a man had nothing to hide.

Clothing was essentially a distortion of manly perfection.

The moment of glory was one for which many, over the centuries, were willing to kill.

RAILA 'OATH'

But it wasn’t achieved merely through acts of bravery and successful raiding.

It was also from conducting warfare in accordance with that labyrinthine forest of treaties, mores, curses, dos and don’ts.

One would have that war was lawless.

Finally, Nasa leader Raila Odinga has gone through the motions of taking the 'oath of office' of the 'president' of the Republic of Kenya, which had been modified into the “people’s president”, a symbolic position that does not exist in law.

It was a triumphant occasion for Nasa supporters but a sad one for Kenyans who would like affairs of the state conducted by the book.

CONSTITUTION
For me, that oath business was a mistake for everyone.

It is a mistake for me because I will annoy any people for writing the things that I am doing.

The irony of Mr Odinga swearing to defend the same Constitution that he was violating by administering an oath on himself to which he was not legally entitled, appeared totally lost on him, and to the circle of lawyers, officers of the court, around him.

For the multitudes of Nasa supporters and their leaders, they demonstrated that the letter and spirit of the law was secondary to their feelings and desires.

MEDIA FREEDOM
An equally big mistake was the reaction by the Jubilee government, which cracked down hard on the media and aimed a machete at the knees of democracy.

Jubilee’s dislike for the free media is well known.

We have suffered such a sustained litany of violations, infractions and outrages in the past five years, much more than we did in the previous 10, that the free press in Kenya is on the verge of extinction.

I will not belabour the fact that when the media laws were passed, we were totally alone.

Apart from a small section of activists, a good part of the public and the opposition, supported the government, sometimes on the sly.

JOURNALISTS
The government’s overreaction has been counterproductive and self-defeating.

A canny regime never seeks to arrest reporters, let alone larger-than-life figures such as Linus Kaikai, Larry Madowo and Ken Mijungu, some of the biggest TV names in the region.

Only a man or woman whose rights have previously been taken away truly appreciates how precious and valuable human dignity is.

Some of the sheltered folks who are not taking the decisions to put reporters in prison don’t know anything but a life of privilege.

They don’t know where we come from, a land of hardship, deprivation and want, a place where you have to fight for even the smallest things in life.

DEMOCRACY
There is no standing in the circle of adoration for this government, which has no respect for what we treasure — our rights and democracy.

To them, these rights are an untidiness and “indiscipline”, which has to be cleaned out.

You did not give us these rights and you did not build our democracy.

They are not yours to take and you will realise that only too late.

As for the opposition, if you can’t commit allegiance to the law, of what value is your oath?

[email protected]