Kwame Owino is right: You cannot make people nicer by making all their bad behaviour a crime. Mr Owino properly diagnoses the problem and his solution is quite likely better than that advanced by the government through the National Cohesion and Integration Commission, NCIC. However, even if we agree with Mr Owino, it is quite likely that the government will double down on the bet it has made with the NCIC and pursue the same course of action that has done little to promote national cohesion or integration of the diverse peoples of Kenya.
The recent investigations and prosecutions for "hate" speech by the NCIC and the Office of the Director of Public Prosecutions prove Mr Owino's thesis. It can also be revealed in the manner the debate around national security has been conducted. The government's argument is that the statutory regime has proven inadequate in ensuring the security of the nation. While acknowledging that national securiy has been affected by a complex set of circumstances, its solution has remained a legislative one in which harsher penalties have been prescribed for offences in the Penal Code and similar statutes. Statutory solutions have very rarely enhanced national security in Kenya. The enactment of the security Laws (Amendment) Act, 2014, will, similarly, prove quite ineffective over the long term.
Part of the problem has been the conflation of public safety with national security. This is a problem that is also reflected in the constitutional understanding of the two interconnected matters. In nations with robust public safety institutions, policing is geared towards the safety of the people, and only slightly to the security of the State. The security of the State (national security) is left to the defence forces and the intelligence agencies of that nation. Policing is more concerned with ensuring that the public is protected from crime so that, for the most part, it can go about the pursuit of wealth and happiness.
Policing should be part of a larger system for enhancing the safety of the people. In this the devolved government has a larger role to play than the national government. Co-operation between the ministry responsible for policing and the devolved government will go a long way in reducing petty crime and ensuring that more serious crimes are effectively investigated (or solved) and, where required, offenders are successfully prosecuted and rehabilitated where possible. But where the devolved government adopts the failing national policies on public safety, the problems are magnified.
Some of the areas in which the police establishment and the devolved government can co-operate on include information sharing. With the right kind of information, analysed in the correct way, a county government can design an effective public safety infrastructure that promotes civic pride, which in turn will encourage more people to invest in income generating work, increasing local revenues for the county government, which can then be invested in the kind of infrastructure that improves the quality of life for the people. Information on the kinds of crimes committed, their spatial spread, the demography of offenders and the like will determine what kind of interventions required. In some cases, no doubt, penal provisions may need to be enhanced; in many others it might be the simple provision of street lights, or better drainage and sewer facilities or even the building of recreational facilities such as public parks or social halls might channel the energies of the idle to more productive ends. an improvement in public safety may then contribute significantly to national security.
The problems with the NCIC approach to hate speech are founded on the same administrative myopia as the challenges faced in national security. It is time the government and its institutions reassessed the legislative-led solution to problems paradigm. If penal provisions were the panacea for crime and criminality - the deterrent effect, that is - crimes of opportunity would have dissipated over the life of the application of the penal Code since its enactment by the colonial government in 1948.
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