Free Your Mind for Your Children

Female circumcision, or its civil society industry nom de guerre, Female Genital Mutilation (FGM) is prohibited in Kenya under the Prohibition of Female Genital Mutilation Act, 2012. Child marriage, that is the marriage of a person who is younger than eighteen years old, is prohibited too. Indeed the Constitution only recognises heterosexual marriages between freely consenting adults; children do not have the capacity to give consent, free or otherwise.

These should be fairly simple rules to enforce. Yet they are proof that Kenya's rule of law regime is still at its infancy. Despite the enactment of laws and the pledges by the State of the enforcement of the law for the protection of chhildren, children are still being "married" off by their parents and women and girls are still being "circumcised" and all in the name of culture and tradition.

Dr Mutunga's and Mr Tobiko's are not enviable positions. The Chief Justice is attempting to re-boot a judicial institution that has been delegitimised by a century of very bad history history. The Director of Public Prosecutions, despite the "independence" guaranteed by the Constitution, cannot overcome the burden of history of more recent vintage. The two institutions are yoked together by the miscarriages of justice and the unfair treatment of the peoples of Kenya perpetrated by their predecessors at the instance of the powerful that unless their is a paradigm shift in our collective national culture, they will be treated with great suspicion by the majority of the people.

It is not just the peoples' distrust of the Judicial Branch or the public prosecutor that contribute towards the desecration of thousands of childhoods in the name of culture and tradition but the collective distrust of the entire edifice of the State, the Government - serikali. Fifty-one years of self-rule and nation-building, and the people still see the Government as the true source of power, and not the reverse. In fifty-one years, we have failed to abandon the veneration of the elected representative or the member of the professional civil service. For fifty-one years the people have repeated the phrase "Tunaomba serikali" every time calamity and misfortune befell us. And so it is to serikali that people look for the protection and care of their own children. And because this is a task that cannot be accomplished by a giant bureaucracy, every time the serikali fails to prevent an act of FGM or a child marriage, it is delegitimised and its laws scoffed at. We are a nation of scofflaws because of our unrealistic dreams of what government can do rather than our rational expectations of what government must do.

Before Mutunga's judiciary and Tobiko's prosecutors can be treated with the same degree of professional respect by the world's best, the peoples of Kenya must break completely with the notion that the fate of their nation lies in the hands of the elected classes, the judicial classes or the public prosecutors; the fate of the nation lies in the hands of the people. It is only the people who can free their minds from the shackles of dependency on the largesse of the State. It is only the people who can take the security and safety of their children seriously enough o demand accountability from the forces of law and order every time their their children are threatened or attacked. And until the day people free their minds, neither the Judicial Branch nor the Public Prosecutor will guarantee justice or fairness for their children.