Taming the offensive weapons

By Musyoki Kimanthi

Q: What does the law say about carrying and possession of offensive weapons? It is now common to see hawkers selling knives and daggers on the streets.

A: To add on to the questioner’s dilemma, some of the pangas or knives we have seen on the streets are so purpose-built they leave no doubt to an onlooker’s mind that they cannot possibly have been meant for kitchen duties or trimming of hedges.

They are war implements. Sometime back, it was not unusual to see a Maasai man on the streets peddling rungus, whips and occasionally a njora. But the look on his face was reassuring, a sign that this was an innocent man trying to eke out a living.

So, is there any law to regulate the carrying, possession and selling of these weapons? Perhaps the first issue to address is whether these implements constitute what could be referred in law to mean an offensive weapon.

Legal definition

An offensive weapon is defined in section 2 of the Public Order Act Chapter 56 Laws of Kenya to mean any article made or adapted for use for causing injury to the person, or intended by the person having it in his possession or under his control for such use.

The law in Section 11 (4) of the Public Order Act gives specific examples of what constitutes an offensive weapon to include any panga, simi or similar weapon. But generally, in defining what counts as a weapon, one’s intention for carrying or possessing the object in question is taken into account. This, therefore, means that the definition includes not only the purpose-built guns and knives but also a snooker cue, a catapult or a stone picked up to swing at somebody.

As stated above, the shapes and sizes of the knives and simis on display on the streets leave no doubt what their makers had in mind. The question now remains, why should people roam freely with these tools at hand?

Section 11 (1) of the Public Order Act states that any person who, without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any street or public place an offensive weapon shall be guilty of an offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding Sh10,000, or to both.

Subsection (2) goes further to state that where any person is convicted of an offence under subsection (1), the court may make an order for the forfeiture of any weapon in respect of which the offence was committed. Further, and most interestingly, subsection (3) states that every offence under section 11 shall be cognisable to the police.

Security failure

With this law in our books, I believe this new problem is a question of purely failing to apply the law as it is. The police need to clear these weapons from the streets before they begin to find their way into people’s bowels. They shouldn’t wait for this to happen.

But perhaps of concern also is the same law that I am suggesting it be implemented. Section 11 (5) states that this section shall apply to such areas, and during such areas, as the Minister may, by notice in the Gazette declare. Could this mean that one can only be found guilty under section 11 (1) if found carrying or in possession of an offensive weapon in an area so declared by the Minister? Do we really need the Minister to tell us what a street or a public place is? This is ambiguity that should be done away with in that piece of legislation.