Running out of time

The night that the nighttime curfew went into effect, many Kenyans were assaulted by police officers for violating the terms of the curfew. The curfew had been imposed to prevent Kenyans from congregating in groups in entertainment joints and thereby increase the risk of spreading the coronavirus disease, Covid-19. The first week of the nighttime curfew also saw the shooting death of a child when a policeman fired in the air while attempting to enforce the terms of the curfew. The first month of the nighttime curfew saw one of the more absurd events: police and county officials forced a bereaved family to bury their loved one in the dead of night without even allowing them to hold a wake in his name. Commentators loudly condemned the actions of the police, though there were a few who echoed the Health Cabinet Secretary's stand: if you violate the terms of the curfew, regardless of the reason, you have no one to blame but yourself.

Kenyans' relationship with members of the National Police Service is built on well-travelled history. Kenyans have been policed with brute force for decades. And when they are not being policed, they are being extorted by police authorities. On the rare occasion that the police and the people are on the same side, the kumbaya moment rarely lasts. There are thousands of honourable police officers, and a few of them have come to the public's attention through their extraordinary acts and achievements. But as an institution, the National Police Service does not live up to the ideals of a "service" but the opprobrium that the impunity of a "force" has covered it like the stench from a skunk pervades a room.

As Kenyans have battled Covid-19 and the police, some police officers have distinguished themselves by descending to new depths of cruelty. The case of Mercy Cherono which, without social media, would not have come to light is only the latest. How she was assaulted is redolent of the anti-Black violence meted on Black Americans by police forces of the United States. No one could possible agree that it is normal for police officers to tie a suspected criminal offender to the back of a motorcycle and drag them along the ground in the name of "enforcing the law" regardless of what the offence is. The police are not supposed to be a weapon for carrying out revenge fantasies before the pubic prosecutor and, if convicted, the prisons service get their hands on the offender. What those policemen, and the bystanders, did was cruel, vindictive and totally in keeping with what policing is in Kenya in the absence of any real reform.

Cruel and violent events in the United States have shone a light on what policing looks like when it is separated from human rights and protection of the people. Kenya is no exception. From the moment Mwai Kibaki's Government was forced to agree to a timetable for constitutional reforms, the question of how to reform policing was a core component of those reforms. The securocracy resisted reforms tooth and nail. When the Constitution was promulgated in 2020, the securocracy had won. What we got was the facade of reform without any real change. Police training has incorporated modern tools but its essential nature remains the same: it is a weapon for browbeating the people whenever they think the they can challenge the authority of the mighty state. Mercy Cherono is the latest victim of policing in Kenya.

We have been failed by the institutions that are supposed to hold the agents of the State to account. The National Assembly and Senate of Kenya have engaged in supremacy battles with each other, with the Judiciary and with the national Executive with nothing to show for it but bruised political egos. But the people they purport to represent have not received the attention their vote entitles them to. The National Assembly, the one entity with the power over the national purse, keeps forking over billions of shillings to an institution that has violated our rights with impunity without a care in the world. In Hon. Yatani's trillion-shillings Budget, the National Assembly has the opportunity to stamp its authority: withhold funds for policing until true and meaningful reforms are undertaken. If the members of the National Assembly continue to shirk their constitutional duty, one day, when the people burn this bitch down, they may begin with the House that was supposed to offer them succour before they go after the Boys in Blue.

Why did he bother?

Both were wrong. That is my story and I'm sticking to it.

The Law Society of Kenya has had a troubled decade, in my opinion. The halcyon days of Saba Saba are well and truly behind it. Its leadership since the day Mwai Kibaki ascended the top of the greasy pole of Kenyan politics has comprised some of the strangest characters to don the horsehair of an advocate of the High Court. If you can tell me what Mogeni, SC, Mutua, SC, and Gichui, SC, accomplished, you must have the observational skills of a sleuth from the famed Scotland Yard. Now we have the colourful, reggae-listening, self-styled Duke, Nelson Havi, he of the British racing green leather chesterfields.

It is trite knowledge that #JKL is not the place to bring rigorous intellect or reasoned disquisition. Anyone who volunteers to share a stage with Mr Koinange has no one to blame but himself when he is subjected to the cringe-inducing lunacy that passes for a talk show. Mr Koinange's stage is where the less intellectually-endowed go to spread misinformation, disinformation, conspiracy theories, sex scandals and political rumours. When Mr Havi agreed to appear on Mr Koinange's show to "debate" Mr Manyora, he should have known that it would descend into a chaotic melange of shade-throwing, peevish umbrage, bellow-y tut-tutting by the host, and eye-rolling by the rest of the world. In short, few people would mistake the goings on for rigorous intellectual canvassing of weighty constitutional and political ideas.

They say that when one argues with a fool, no one can tell them apart. I will not lay the charge at their feet. But, be honest, didn't that adage spring to mind when the "debate" shifted gears and boxing terminology entered the fray?

Mr Havi has an unenviable task on his hands. He has to live up to the storied history of the LSK of the 1980s that afflicted Baba Moi's government - and live down the shame listed on the Society by his most recent predecessors. He cannot afford to be distracted by the Koinanges and Manyoras of the day. He must rebuild a Society whose members must prepare for legal practice in the 21st Century. He must hold the Government's feet to the fire regarding fidelity to the Constitution and the written laws of the land. He must stave off the oncoming competition from overseas tech-driven marauders. And he must restore the relevance of the Society to play more than a partisan role in the political struggles of the day. He cannot afford to waste time and resources performing in clownish arenas with interlocutors of doubtful intellect or political integrity.

Mr Havi should eschew the cheap publicity offered by tabloids such as #JKL and, instead, undertake the patient work of rebuilding the intellectual and political might of the Society. The TV cameras and radio microphones will find him when need be. He shouldn't chase after them. And for goodness sake, the next time Mr Koinange offers him the opportunity to "debate" another talking head, Mr Havi should politely and firmly, decline.

Are you imaginative enough to be free?

If you have a child, that child's safety is most likely the most important thing in your life. If anyone harmed your child, you would exact retribution, terrible retribution. You will spend anything to keep your child safe. You will pass any law to protect your child from the evils of the world. So any law that punishes any person who even looks at your child cross-eyed will receive your full-throated support. So it must terrify you no end when someone proposes to abolish all the laws on the law books and start with a clean sheet of paper. Is that person some kind of monster that wants to sexually exploit your child and murder them afterwards?

The Constitution of Kenya is like Joseph's many-splendored coat. It covers a wide array of subjects. But its showpiece is Chapter Four, the Bill of Rights. Twenty-six separate separate rights and fundamental freedoms, recognised and protected by the Constitution, and an obligation imposed on every person to protect and defend those rights and fundamental freedoms. A decade after its promulgation, the edifice of laws, regulations, rules, guidelines and orders remains almost entirely unaffected. In fact, I'd warrant that they have been reinforced and bolstered in insidious and disturbing ways.

The core of the colonial-era law-and-order system remains unchanged - the Penal Code, the Criminal Procedure Code, the Civil Procedure Act. The National Police Service Act, the National Intelligence Service Act, the Kenya Defence Forces Act and the Office of the Director of Public Prosecutions Act are the filigree adorning the dark heart of the Kenyan policing apparatus that was designed to coerce, intimidate, misuse and abuse the civilian population, especially those who were poor and weak. Colonial administrators may have withdrawn from public service, but their spoor continues to contaminate our attempt to imagine freedom without the baggage of Black-is-evil philosophies.

A clean sheet terrifies many people. But it is debilitating for those who are incapable of imagination, having smothered it with Caucasian theories of crime and punishment, hence their reflexive, instinctive demand: what about the children?! That demand has successfully stifled debate for decades. While we may have successfully reorganised the coercive systems of government, we have not even began contemplating the complete rewiring of the systems themselves to reflect the central place that humans play in government, as contemplated in the Bill of Rights. Without such a rewiring, the Bill of Right's promise will never be fulfilled.

Even if the rewiring focussed exclusively on the care and protection of children, so long as it began with the question of what freedom looked like from the eyes of a child, half the challenge would have been met, with the balance to be met by drawing from our own histories of crime and punishment, law and order, peace and war, money and power, justice and fairness, education and training. If it takes a village to raise a child, what does that say about the child's relationship to its siblings, parents, extended family, village, leadership? What does it say about the child's place in the academy, work, justice systems, governance mechanisms? Is the child free or is the child the camouflage adults use to un-human each other?

I don't have the answers, and if I pretended to do so, I apologise. I hope that I have some of the right questions, though. I hope you have the breadth, and humility, to imagine anew what the Bill of Rights can free us to be.