Why Kenyans think the law is truly an ass

The courts are deemed to be lenient with violent offenders prompting many to support summary execution of suspects

Last weekend, two teenage boys were executed by plainclothes police officers in broad daylight on a busy street in Nairobi’s Eastleigh area.

The incident, captured on video, quickly went viral and sparked fierce debate on extrajudicial killings on social and mainstream media.

Most public debate fell along two broad categories. There are those who praised the police for a job “well done”, saying gangsters should be shown no mercy. But others argued that summary executions were categorically wrong and unjust, that despite their apparent “efficiency” at getting the job done, they simply entrench impunity, which ultimately harms everyone.

Kenya’s high rate of extrajudicial killings has already been well documented, and has been quoted extensively this week. Kenyan police and military have been accused of carrying out enforced disappearances and torture, and killed at least 122 people last year, the highest in Africa, according to Amnesty International.

But there was an intriguing justification for the killing that ran through the commentary last week. It was that the two boys were “known thugs” – recognised as gangsters by the community in Eastleigh. Indeed, Nairobi County Police Commander Japheth Koome said the suspects were wanted for killing two police officers in Kayole and Soweto last month.

In other words, there was no debate about whether they were robbers and murderers – the public knew it already. Those supporting the killings say such “known thugs” are often let off lightly when they are taken to court, only to return even more hardcore than before, so it is better that they are dealt with decisively as a message to others.

This raises the question: how it is that the formal criminal justice system – the courts especially – often fail to “know” what the public already knows? What is it in its logical and structural foundation that leaches away this version of public knowledge? What, indeed, do the courts “know”?

Data from a recent audit of the criminal justice system in Kenya gives us a hint of just how badly disconnected the court’s “knowledge” is from Kenyan reality.

More than two-thirds of arrests, and more than half of cases that go to court in Kenya, have to do with being drunk and disorderly, being a nuisance, causing a disturbance, or not having a permit to transact a certain business. These are essentially petty offences that are either simply antisocial behaviour, or in the case of trading without a licence, driven by poverty and lack of other economic opportunities.

Overzealous laws

Various colonial era laws that are still in Kenya’s statute books zealously arbitrate public spaces, criminalising making noise on the street, sleeping in public, hawking superstitious material, defiling public space, and even loitering ‘aimlessly’ at night.

These laws had one central purpose – segregation. They were simply intended to discourage contact between the worlds of the white settlers and Africans. To curtail freedom of movement and enjoyment of public space by non-whites, the settlers created categories of persons known as vagrants or vagabonds, writes researcher Mercy Muendo in The Conversation Africa. How a Kenyan can be a vagrant in their own country, even in their own neighbourhood, is something we rarely interrogate – but should.

The same audit report found that Saturday, these socially petty crimes had a conviction rate of over 80 per cent in court, whereas cases of robbery with violence are actually withdrawn by prosecutors 74 per cent of the time. More serious offences, such as robbery with violence, rape, and murder are more likely to be withdrawn in Kenyan courts than any other outcome, while less serious offences are highly likely to result in a guilty verdict.

In other words, it seems that the courts and broader criminal justice system in Kenya find it easy to access “knowledge” about socially petty crimes, but find it much harder to know about real criminals who actually threaten public safety.

The data supports the view that even if robbers are arrested, they will be released without charge, their cases withdrawn or acquitted.

But that’s not the whole story. The other intriguing argument that emerged on the social media commentary was that of “due process”. A summary execution on the street is chilling partly because it seems so arbitrary – we only have the word of the police to go on that these were indeed hard-core gangsters.

It could then trigger a slippery slope where anyone could be fair game in being branded a threat to public security; this week, many quoted German Lutheran pastor Martin Niemöller’s memorable poem that speaks of the silence, cowardice and political apathy in 1930s German society that enabled Nazism to flourish:

First they came for the Communists, and I did not speak out—

Because I was not a Communist.

Then they came for the Trade Unionists, and I did not speak out— Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Other conversations on social media suggest that indeed, a form of “due process” does happen in Nairobi’s dark criminal underworld. When a gang rises to power and seems to operate freely, it is not always because the police are oblivious or incompetent in capturing them.

Symbiotic relationship

Instead – as the award-winning 2012 film Nairobi Half Life dramatically portrayed – it is because the police (widely considered Kenya’s most corrupt institution) are colluding with the thugs in a kind of symbiotic relationship, taking a piece of the loot in exchange for looking the other way.

Summary executions happen when the thugs step out of line or refuse to pay up, but even before that, a form of “due process” does happen. Police would warn the thugs, or go to their parents and advise them to talk to their errant children, or even “encourage” the thugs to go upcountry and disappear from Nairobi forever. Only then, wakizidi (when they become too much) would they be gunned down in broad daylight.

Of course, such measures are illegal in Kenyan law. Anyone suspected of committing a crime should be arrested, charged and put through a fair trial before a court of law.

But if we are to argue about what is for a minute (and not necessarily what ought to be) these kinds of informal mechanisms of justice, law and order are a reality of Kenyan and African society Saturday. In fact, people actually trust them more than the formal institutions.

Recent data from Afrobarometer shows that people have far more trust in informal or non-state institutions, such as religious leaders (priests, pastors and imams) and traditional leaders (chiefs, elders, and headmen) far more than the formal institutions of the State.

One could argue that informality, then, is an institution that regulates society, only that is not codified, visible or “knowable” to state structures.

You have probably seen, but not recognised it, at your local, informal street market. The people who lay their wares closest to the road are not incidental; they have probably paid the “owners” of the market for that prime spot.

Discretionary power

And on a state level, Education CS Fred Matiang’i, and Tanzania’s President John Magufuli are perhaps the best examples of leaders in the region who, although officially operating in formal offices, use discretion as a kind of informal institution to get things done.

African states are often described as weak, with low institutional capacity deliberately kept so by elites, so that the political class can maximise its discretionary power and bend the state for personal gain.

Even so, as Matiang’i and Magufuli seem to have demonstrated, corruption could also be disabled by that same discretionary power. Unpredictability is confusing to thieves and cartels, because they don’t know what to eat and what to leave on the table.

That Matiang’i could “deliver” such a rapid overhaul of the examination marking and results is a reflection not just of his strong personality and efficient management skills, it also reveals that out institutions are weak enough to actually respond so comprehensively to the shift in attitude projected by a one person.

Whether or not this is sustainable or the right approach is another question altogether. Thieves and cartels, of course, have a remarkable resilience and capacity to reorganise.

But this demonstrates that this is the nature of the African state Saturday – seemingly weak of the outside, but internally consistent and logical in its own way, even malleable if you know where to touch it.

The question though, is, how we can shape our police, courts and understanding of justice and administration so that when the public knows something, the system knows it too?

The alternative – that impunity should now be formalised and extrajudicial killings allowed to run amok – is too chilling to contemplate.

— The writer is executive editor of Africa data visualiser and explainer site Africapedia.comSummary executions  The police and the millitary occupy top spot in Africa’s list of shame on countries accused of condoning extrajudicial killings, with at least 122 of such cases documented in 2016