When it comes to ordering a state within the confines of the law, there is a statement mentioned in the book of Habakkuk38 that rightly reflects the state of Kenyan law and many legal processes. Habakkuk alluding to his days maintains that the law has been crippled. For Habakkuk, this meant that impunity was rampart in his days since the law could not catch up with anybody. Is the law in Kenya crippled and if so at what point did it loose its swiftness?
Before the advent of colonialism, many Kenyan communities were governed through unwritten and social rules and society customs and norms (Ogot, 2000:23). Colonial agents and missionaries however destroyed most outward manifestation of the old tradition; at the same time they first built their own cognitive view of rural African society and then imposed it on daily life before or during the 1920s (Wanyonyi, 2010:35-38). They also erected a structure called customary law which was utterly foreign to the spirit of the former tradition. Customary law was the headstone on its grave (Werbner and Ranger, 1996:275). The familiar old ways of life were reeling and there was a tragic chasm between the physical and cognitive realities.
143
According to Wanyonyi, during this period variants of neo-African tradition were gestating in cities and the countryside replacing the real identities of the Kenyan. The elites were left to guide the contour which the Kenyan identity should take after the exit of the imperialists. They prevented the post-colonial Kenyan from inventing new structures to cope with new situations. Instead the elites mimicked colonial structures, preferred to Africanized structures and enforced them. These whole structures of perceiving life and reality made sense only to the elites and the need for the so called civic education on how to live. The Kenyan was on an irreversible cultural crisis and being turned almost to cultural schizophrenics (Werbner and Ranger, 1996:276).
Law in Kenya today can be seen as a representation of mimicked colonial worlding. It is caught up in a capitalistic world which Kenya copied from the colonial masters. It is the tool of the dominant meant to control the masses. When Kenyan law and penal institutions as they are today can be read through a Marxist lens, they can be viewed as being caught up in class relations and economic structures (Garland, 1990:111).
Accordingly, Garland argues that in a capitalistic society, law is evolved to produce categories which are legal expressions of bourgeois values. For him, law materializes and universalizes categories which are specific to a particular class-based mode of production (1990:112). Therefore law provides a powerful ideology which helps legitimize these relations by phrasing particular economic interests in a vocabulary of universal right. According to
144
Garland (1990:113) law is an instrument of class domination and occasionally of class terror. It protects the world view of the dominant as well as the social and moral structures which support them while excluding that of the subaltern. It is chiefly directed against those elements who have ‘lost their position’ in society.
Postcolonial Marxism helps us to see law for what it really is; an ideological vehicle of the dominant class for social and economic control. Studies that fail to recognize and identify this class dimension and ordering of society by the dominant merely reproduce the ideological effect which law seeks to promote. The practice of law is thus a mechanism of class rule embodied in a legal form which seeks to disguise its class content. Law therefore is a weapon in immediate class struggles and not a guarantor of individual freedoms as it purports to be (Garland, 1990:114). When the subalterns realize this, a revolution in social structures can bring about the conditions needed to dislodge the hegemonic class.
Law therefore, seen in this way becomes the vehicle for organized state terror. Conversely, this becomes inverted impunity because it is only permitted by a world view that is sympathetic to the hegemonic class. For example, it is important to note that law in a dominant class serves class purpose in a way that also enlists support from the subaltern class. In such a situation, the law which protects everyone at one level, also legalizes the basis whereby one class exploits another. Therefore, seen in another way, ‘impunity’ becomes the subaltern’s response to hegemonic worlding. In its performative aspect,
145
impunity becomes an ideological counter-structure by which the subaltern cries out for an inclusive interpretation of the society. Seen in this way, law becomes a corrupt class instrument (OI: 26/06/2012). Accordingly, law is all about social authority (e)cousia) and the governing claims of those in power. In this view, then it becomes right to argue with Garland (1990:123) that law “reinforces these claims by means of coercive sanctions as well as symbolic displays”.
In Kenya impunity of the law has been perpetrated in many instances when the application of law tends to favour those in power or when structures of authority are organized in view of the dominant class. For example, on Wednesday 30th May 2012, Kenya’s Parliament held debate and approved the Bill to control opinion polls. Part of the debate spelt that opinion polls in Kenya disregard many laws and are tools for popularity through impunity. Debaters argued that pollsters in Kenya disregard all law to manipulate or declare their kings as the most popular. In passing the bill, Parliament noted this and included stiff penalties for those found flouting opinion polls control laws. How easy it is for the dominant powers to circumvent consequences and intention of law is shrouded in the words of one of the debaters, Hon. Boni Khalwale as he argued for stiffer penalties, “if we don’t enhance the punishment for breaking the law, then those who do it can ignore the law because they can afford the fine” (Rugene et.al, DN 31/05/2012 p36).39
This only illustrates part of what the dominant class can do when the law is legislated in their view. It also illustrates that in Kenya it is easy to
146
break the law willingly and use class positions and money to settle the offence or escape. To shed more light on this, during the CBS, participants (CBS: Holy Family Basilica, 01/08/2012) noted that law in Kenya is intended to favour the powerful and torment the powerless. For them, impunity thrives in an atmosphere where there is no fair playing ground.
In Kenya, the judiciary which is supposed to act as the beacon of the rule of law has to a great extent been marred by allegations of lack of transparency, inefficiency, and assertions of corruption among members of the judicially (CBS: AIPCA, 11/10/2012). This can be illustrated by the backlog cases that have in the past filled the court system because on many occasions, trials fails to commence within reasonable time, and cases are not concluded expeditiously. The cumulative effect and consequences of delayed prosecutions is the erosion of faith in the law on the part of the people and also the undermining of the rule of law. When ‘justice delayed becomes justice denied’, this state of affairs provides little or no incentive to the citizen to obey and respect the law as it is viewed as retrogressive. The interference of the judicially by the political elites, legislature and the executive further undermines the due process of the law thus promoting impunity.40No wonder, during the CBS, members noted interference in the judiciary by the powerful as one of the major contributing factors of impunity in Kenya (OI: 13/09/2012). Although, Kenya is currently enjoying a reformed judiciary and there is great promise that things are going from worse to better, citizens need
147
be encouraged to have faith in the judiciary and other institutions created under the current constitution.