Is public shaming a justified response for moral dilemmas?

There is a raging debate over the Cybercrime Law that among other things, criminalises public shaming through technological platforms and devices. This is coming barely a month after a video emerged showing Kirinyaga County Deputy Governor Peter Ndambiri with a female colleague being harassed by unidentified men for allegedly committing adultery.

This incident, as isolated as it may be, provides an ample opportunity to reflect on citizens’ rights to mete patriarchal justice on an alleged adulterous couple, and the moral dilemmas such actions manifest. Broadly speaking, the incident questions the boundaries of marriage, justifiability of cultural norms and limitations of the state.

Given that Kenya is a constitutional democracy with an expansive Bill of Rights, Mr Ndambiri and his co- accused have a right to privacy and freedom of association as two consenting adults. While adultery is recognized as one of the grounds for divorce, the Constitution does not expressly outlaw it.

Written versus cultural norms

Did the drafters of the Constitution consider this a less important area to formulate rules of conduct, or did they in omitting a direct reference accept the place of cultural norms in regulating marriage and the conduct therein?

These questions link to the reality of legal pluralism – the notion that both modern and cultural norms govern social relations. Despite many decades of experimenting with modern institutions, cultural norms form a significant part of social interactions in Kenya. As such, many Kenyans are not constrained by written laws in their everyday relations.

For example, adultery is frowned upon in many Kenyan communties, and might lead to dissolution of marriage, or payment of fines. Adding to cultural prohibitions is the largely ‘religious’ nature of many Kenyans.

Hence, violence and mob justice against the adulterous draws its support from community members who view it as the equal punishment that should be collectively executed at the scene of crime with no repercussions to perpetrators.

Although many Kenyans were critical of the invasion of Mr Ndambiri’s private space, many others welcomed his shaming due to ‘conventional’ resentment of adultery. With regards to the latter outcome, the invasion of private spaces to supposedly regulate individual behaviour is generally accepted.

This acceptance is promoted by the lacklustre nature in which state authorities respond to emerging crises, or the state’s ambivalence in addressing societal concerns.

In other words, the absence of the state provides incentives for occasional invasion of private spaces, and concomitant legitimation of such actions by segments of the society. This is why many vigilante groups are perceived as legitimate actors across many localities. Also, many Kenyans justified the 2007/2008 post-election violence based on their specific interests and circumstances after state failure in conducting a credible election and stopping the escalation of the violence.

Dangerous precedent

Nonetheless, the legitimation of citizen justice is a dangerous precedent that should be avoided, as it might lead to anarchy. For instance, a challenge exists when thugs go on a blackmail spree under the guise of “protecting a marriage” because it is justifiable to beat up and extort from the adulterous and their accomplices while the public cheers.

If this were the moral code of dealing with wrongdoing, why can we not codify the punishment in the constitution so that there is standardization?

Why can’t we be bold enough to say that punishment for being caught in an adulterous perch will be death by means of crude weapons, firing squad or since we fancy the traditional means, burning at the stake or crucifixion?

Furthermore, for what value does it add to our deeply held African customs and religiosity if we execute with haste the adulterous, but cannot apprehend the child molester, the land grabber, the election results “cook” or the drug peddler? Don’t we elect some of these crooks as our MPs, Governors and MCAs?

Conversely, the Constitution provides written rules of the game that guarantees predictability, iteration, and universality, as opposed to arbitrary action of individuals which lack consistency.

Overall, the Ndambiri incident called into question the limits of private spaces in legally pluralistic society, and by extension, notions of the boundaries between the private and the public sphere.

Simply put, Kenyans are swinging pendulums between cultural/religious identities, and attempts to emerge as modern societies (in the sense of conforming to written rules).

Mr Lugano is a Governance Consultant ([email protected]) Mr  Wanyonyi is a specialist on Strategic Communications [email protected].