KINYANJUI: How our legal system is failing us

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As the top A-Level candidate at Sacred Heart Kyeni Girls High School in 1979, I should have become a lawyer. I did not.

My career adviser asked me to choose teaching, saying it is a good career for women. Teaching offers flexibility and mobility to wherever a future husband would be working. I heeded her advice.

And looking at Kenya’s justice system, I am glad I did not become a lawyer — the monetary benefits and prestige notwithstanding. It has failed us in many ways.

Going by media reports, most criminals get their way. Corruption cases take very long to be prosecuted and concluded, and criminals enjoy their freedom thanks to the work of good lawyers.

Murderers are granted bail because they are rich and powerful. Justice is tilted to the power of one’s pocket. Those with no money rot in jail as they don’t have good lawyers to represent them.

The lawyers who worked on our constitution failed us. They never seriously thought about the logic, norms and values of our former colonised society, whose values of indigeneity collide with the coloniser’s.

They ‘copy-pasted’ sections of other constitutions and packaged them as our new supreme law.

The Constitution does not reflect, for example, the need for coexistence of people of multiple ethnicities and different levels of articulation to the Western modernity and capitalist production.

That is why groups are coming up with laws to control dairy production or stop the use of manure. Simply put, the elite have their way and the plight of ‘Wanjiku’ (common man) is ignored.

The article on the two-thirds gender rule, for instance, is flawed. Only two-thirds of elite women are in formal employment, according to a recent study by Kenya National Bureau of Statistics.

The rest are traders, artisans and peasants. Which means that, even if the rule is passed, the majority of Kenyan women will never benefit from it.

Instead of creative articles to include ‘Wanjiku’ in Kenya’s development politics, lawyers crafted a constitution that favours elite women who fight for jobs with elite men.

Meanwhile, the real ‘Wanjiku’ suffers in Gikomba due to frequent fires for which no one is prosecuted or in an ill-equipped delivery room at Pumwani Maternity Hospital or a rural facility.

Yes, there are calls to reform the Constitution, but these are only meant to benefit the elite — mostly families that have always benefited from capitalist modernity.

On their lawyers’ advice, they always craft laws that favour them, to remain on top of things.

We need a system whereby all ethnic groups produce a leader and each one of these leaders select their boss.

Alternatively, we can learn from the Kamukunji Jua Kali electoral system: To cater for ethnic differences, individuals from different tribes do not compete for the same position. The positions are distributed on the basis ethnicity, in clusters.

If these ordinary Kenyans have evolved their system of ensuring fairness and representation, how come learned lawyers cannot come up with a representation model that caters for all and minimises conflicts?

The Bill of Rights should have been based on the context whereby consideration was given to the impacts of an individual’s rights on other people.

The rights would have been conceived in the spirit of utu, ubuntu. Interpersonal relationships, norms and values would be considered.

I sympathise with the mothers of the murdered young women, seeing the murderers walking freely, living in palatial homes and driving big cars.

If lawyers had thought seriously about how the Bill of Rights infringes on other people’s rights, they would have come up with different conditions of granting bail or suggest the cases entitled to bail.

“Elite coloniality” power mainly illuminates the way laws are crafted and justice implemented.

Elite coloniality involves seeing others as non-human and creating situations that advance only the interests of the elite.

For that reason, justice for all will never reign because the elite lawyers and ruling class want to maintain the status quo.

This is the reason why most Kenyans are only interested in celebrity status and money. They will go out of their way to achieve that and ensure laws are crafted that protect their interest.

We need lawyers who will address the elite coloniality of power in the Constitution and see that we have a ‘Wanjiku’ constitution that caters for the vulnerable.

We need laws that will not tell the vulnerable that the murder of a university student is a “lesson” to girls, and teach wayward men a lesson, not give them freedom to commit murder.

Dr Kinyanjui is a senior research fellow at the Institute for Development Studies, the University of Nairobi. [email protected]

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