The [non]Sense of [in]Justice in Kenya

by Yule Mbois Mndialala

A young Dutch man challenged a group of us with a couple of questions, after listening to a debate on extra-judicial killings and justice in Kenya. The questions he asked, which needed answering but got little owing to lack of time, were these:

What do we, as Kenyans, consider just? Should morality influence our sense of justice?

This got me thinking, as the conversation glided along, about the history and current state of (in) justice in Kenya.

The Kenya we know and live in, of course, has mutated greatly over the past century, going overnight – in the grand scheme of things – from a world technically shut out from external influence, to a child that swallows all the influence possible, without the means to truly ingest and or digest it.

Much of this outside influence is considered based on citizens’ mutually exclusive experiences with it: as with the days of old, when the coastal settlements and long-distance traders – who interacted more and longer with said influence – developed actual relationships with it, exposure to ‘foreign’ ideals and norms takes some getting used to for understanding to be born.

As such, it is – and has been – possible for the same norms and ideals to be equally loved and frowned upon by a people who “are one”, be there efforts for “national dialogue” or none.

In the case of justice in Kenya, the question thus becomes, ‘Whose justice?’

Is it the State’s? Is it the Kenyan People’s? Is it the majority of them? Or is it for, perhaps, the powerful, regardless of state, numerical advantage or citizenship?

To resist dominion, the people who now occupy regions known as the Republic of Kenya tried – and failed at – different forms of interaction with the oppressors [or the civilized, depending on your cup]. These same forms were used together, decades later and perhaps by accident, to gain independence.

While the last decade of colonial times in Kenya was wrought with bloodshed and despair on both ends of the divide, the events from 1902 to 1952 predetermined that course of action. The Hut Tax Regulations of 1901, the scandalous Maasai land treaties of 1904 and 1911, the imposition of the kipande system and forced labour, among others, precipitated the State of Emergency from 1952.

How so? Let’s look at what happened, which is in essence a history of the oppressed rising up to topple their oppressors in their own language:

• After violently imposing rule and continually stealing livelihoods, the colonists take able-bodied young men away to war in 1914 as KYMs (which is Kikuyu for “Kaanda ya Mooko” – carriers who were periphery to the cause). In this war, the young able-bodied men see white men kill each other, and realize, among other things, that they too could die the same way they killed.
• These same men come back, those who did, with the illusion of white superiority waning. They share these stories with their comrades. The resistance begins to grow, in the way of welfare associations and underground radical sentiment.
• Come 1939, 20 years after the last war, young able-bodied men go to war and are actually sanctioned to “kill the enemy”. The enemy was not truly ‘their’ enemy, for if anything, in an equal setting, they would be friends.
• They, however, were not on equal ground: should the enemy win, these able-bodied men were simply property that could be transferred at a boardroom (or, more informally, in a train carriage, as was the case in the armistice that began the end of WWI) This “kill or be killed” mentality, by 1945, as well as the expertise that comes with survival at war, made the very “terrorists” who would run riot in Kenya, giving back as hard as – or harder than – they and theirs had received over more than half a century of tyranny.

However, war was not the only answer. And even where it was, it was a war that was thought out, where the frustrated and oppressed used what they had, and what they learned from their enforced interactions – as slaves on the one hand, or collaborators separately – with their masters.

The end-game was less about the colonists succumbing, and more about the cost of the resistance being too high, on the settlers’ economy, livelihood and security.

Was it just that so many settlers died as a result? Was it just that many freedom fighters became terrorists to their own people, killing them as a result of their divergent ways – collaboration and resistance being the main ones – of dealing with the colonists?

Independence itself, and all the board games that came with it, is an affair that would prevent getting to the point, which is “whose justice” we serve today, as a people.

Absolute fear restrains, absolute power corrupts, and absolute love pulverizes thought. With Kenyatta’s – and Moi’s later – government, the rule of the jungle that had in many ways led to a speedier power handover than would have been, prevailed. Those who had – or were perceived to have – power, were above the law. They made their own laws, like their predecessors, relative to what they needed. With law and justice being as intertwined as they are, they were the seeds of justice in Kenya.

For 38 years, under the cockerel party, we had citizens who absolutely loved the people in the very system that held them hostage, and were ground into whitewashed pages by that blind love; many who were in absolute fright of absolutely powerful people, and their justice. We were restrained, by our corrupt regimes.

What happened when eventually a ‘new system’ did come in, a system in which there was fear, but it was relative; there was power, but that too seemed relative – thanks to the illusion of inclusion; and there was love, but it was not as absolute?

What happened, when after years of de facto injustice veiled by restraint or extreme adoration, we were not – as a nation – restrained? What happened after all those years behind a cloud full of corrupt power and a justifiable culture of nationwide fear?

We. Exploded.

We took justice where we were told we could.

The rule of the jungle was back, and back on a scale never before 2008 seen in Kenya.

So why should justice be an absolute concept, when our own system has continually proven to us how relative it is, from the second ‘civilization’ arrived at our doorstep, to the minute ‘independence’ came, to the hour of globalized democracy?

A sense of Justice, I often find, on such a grand and longstanding scale as is Kenya’s, is a complicated – yet simple – issue to conceive. A sense of injustice, however, is as easy as the second it arrives on your doorstep.

Is it just to fire a waitress for dropping a glass? Is it less just for you, not the waitress, to lose your livelihood for dropping a glass?

Is it just to throw an egg at an offender, real or perceived?

Is it less just when you realize that one egg is the solution to unemployment and famine in Haiti?

How just is it to pay taxes in Kenya, when all you ever really know is what you are told they do, what you see them not do, and what you hear in exposés about their misdeeds?

Is there really any true difference between the nonsense of justice in Kenya, and the nonsense of injustice? Especially, as has often been the case, where it concerns the value of human life?

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About the Writer

Yule Mbois Mndialala (A.K.A. French Freddy) is a young animal that does not take itself too seriously, coz there be books to read and lives to thrive and coffee and ciggies to consume. When allowed to, he can talk your ear off, so watch out.