Ubeberu mambo leo.

Collective punishment is as old as Kenya has existed. The successions of Governors Kenya colony endured believed fervently that the only way the natives would be civilised would be to lay blame for the acts of one on his entire family, clan or tribe, depending on the gravity of the act. Fifty four years since we gave the mkoloni the steel toe, that legacy lives: Shifta, Wagalla, West Pokot, Mt Elgon, Eastleigh, Lamu. Seems that the lesson has been learned and learned well: the National Transport Safety Authority has joined in the game too.

I am not fond of most of the Savings and Credit Co-operatives, Saccos, that run matatus in my beloved Eastlands. I would go so far as to admit that if the proprietors of those death-traps were to be suddenly stricken by palsy of the mind and of the tongue, I would not feel a twinge of guilt for wishing them incessant volumes of drool and the pitying ridicule of the able-bodied. But those Saccos that bear the legends Umoinner, Forward Traveller, Embasava, Utimo, Pin Point and Marvelous have become laws unto themselves, harkening back to the pre-Michuki Era when public service vehicles sowed death, destruction, mayhem and criminality like a bastardised modern-day version of the American wild west.

Sadly, we have decreed for ourselves, by Constitution and by statute, a culture of the rule of law. The law shall be enforced as it is written; we shall not presume to make the law up as we go along. It shall bind us equally, without fear or favour. You contravene any provision of our written law and it is between you, the prosecutor and the magistrate on whether or not the maximum penalty will be imposed against you. I say sadly because we have very little faith in that concept of the rule of law. We attempt to bolster it by the creation of mini-empires to enforce specific areas of our written law. When it comes to the Traffic Act, it was the police and the magistrates who held sway. They have now been joined by the National Transport Safety Authority, NTSA, and with it has been revived for the modern era the concept f collective punishment.

The rationale of collective punishment is simple enough. Like the Cabinet each member of the group is bound by the actions of his colleagues; when one strays, all stray and all are liable. Embasava Sacco is notorious for the recklessness of its crews, in and out of service. It will find little sympathy from the victims of its recklessness because of the NTSA suspension of its operating license. But nonetheless it must be defended, because to leave it to the arbitrary diktats of summary collective punishment is to revive the colonial mentality that held sway for nigh on sixty years.

Ours is a very liberal constitutional arrangement, placing primacy of the individual over all else. It is reflected in the tone and emphases of the Bill of Rights. While I am sure there are very few innocents among the ruffians of Embasava, I am nonetheless unwilling to go along with a patently unconstitutional penalty for the proven recklessness of one crew. In Mario Puzo's words, "Better a hundred guilty men go free than for an innocent man to be jailed."

The NTSA' s collective punishment instincts are its stark admission that it cannot effectively regulate the transport sector and that it has run out of ideas of how to do so. It is therefore time we asked ourselves whether it is worth keeping the NTSA. We shouldn't be pouring billions of scarce resources into an institution whose instincts recall the basest parts of our national history. If it cannot see the irony of using tactics employed by a colonial power that galvanised a nation to fight a war of liberation, then it is time we shuttered its windows, padlocked its doors, sent home its officers and erased it from the national conscience for all eternity. Just like we did with the wabeberu.