Thursday, September 12, 2013

Ignorance of the law should not convict a Kenyan.

It is time for the ends of justice in Kenya to dispense with the Ignorance Rule. The rule states that ignorance of the law is no defence. It was created for a jurisdiction and at a time in which its application was easy, straight forward. Its draconian application in Twenty-first Century Kenya frequently defeats the ends of justice. It is manifestly unfair as demonstrated by the hundreds of Kenyans convicted simply because an officious government applies obscure statutes to obscure acts that no reasonable Kenyan could possibly consider to be unlawful.

In the past decade alone, Kenya has enacted close to a hundred statutes. Some are very detailed. All are drafted in English. All may be obtained either on the internet for free, or at the Government Printer for a fee. None is distributed to the "ordinary" Kenyan. None is translated into any of the near forty local dialects. Public education on the enactment of new laws is conspicuous by its absence. How is the "man on the street" to defend himself when he cannot reasonably know what the law is, what it says, and what his obligations are under it.

The Constitution proclaims its supremacy, and declares the sovereignty of the people. But these constitutional principles are meaningless if the application of the laws made under the Constitution fail to account for the peculiar circumstances of the many users of the law. Official government statistics tell us that significant proportions of Kenyans cannot speak, read or write in English. Others cannot read or write. many do not have access to the internet. 60% live in rural areas without access to either electricity or government officials or to both. It is unjust to expect that these people will know the law in order to modify their behaviour in accordance with the law.

Even those who should know the law are not knowledgeable about the law. They may be educated, with access to the internet, and with the facilities to find out what the law is. But their lives do not revolve around their education in what the law is or what it means. Many must earn a living; they may or may not know what the law says regarding the activities they undertake when they go about their business. It is unjust to expect them, too, to know what the law is and to apply it.

In Kenya, there is no reasonable circumstance where Kenyans can honestly be expected to know the law. None. Even with education and access, and the capacity to know what bit of the law applies and which one does not, it is inevitable that large swathes of the Law of Kenya will remain unknown to a majority of Kenyans. Therefore, it is time for the courts to rule that ignorance of the law, even where it cannot be proven, is a defence. If the law is enacted in Parliament, and Kenyans are not educated about it in the broadest way possible, or the law is distributed to the widest number in the language that allows them access, and understanding, there is no reasonable expectation that Kenyans will know what the law is. It is only the State and lawyers who benefit from this rule; Kenyans, on the other hand, continue to be victimised by the law, not protected by it.

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