The rule of law in Kenya is slowly collapsing as we watch

We often forget that colour is irrelevant below the skin, a name is something we don’t choose for ourselves, and economic status is something that lasts, at most, three generations.

We frequently think that law can resolve societal problems, the problems we have created for ourselves, and which we do not really want to or don’t know how to resolve.

Thus, we hide behind the law, and blame the law as a bad manager hides behind company policies to avoid facing a bad, absurd decision.

We also fail to recall that law without the spirit and the will to enforce it is irrelevant and useless. We should not place the Judiciary at the level of the Executive or Parliament, which are elected bodies.

The Judiciary is not elected, but selected. Law is not about opinion. The people do not grant the Judiciary’s mandate; rather, it is granted for the people.

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In 1781, Lord Chief Justice William Murray, First Earl of Mansfield, faced one of the most dramatic decisions a British Chief Justice ever had to make: the case of the Zong Massacre.

Chief Justice Murray was a British lawyer, politician and judge noted for his reforms of English Law. Murray was the most powerful British jurist of the century, and his decisions reflected the Enlightenment and moved England on the path to abolishing slavery and the slave trade.

The Zong Massacre was the killing of more than 130 enslaved Africans by the crew of the slave ship Zong in 1781.

After losing a good number of slaves due to the harsh and inhuman transportation conditions, the Zong's owners decided that it was more profitable to drown the slaves and claim insurance compensation.

No one was concerned about the slaves. They were just cargo and had been insured. The bottom line was simply whether the Zong’s claim was genuine or fraudulent.

SLAVES 'NOT MERE CARGO'

When this came to the hands of Lord Chief Justice William Murray, the rival parties expected him to decide purely on the issue of fraud or compensation. Instead, he went further into the issue of slavery.

This unexpected twist was triggered by the Chief Justice’s own family story. His nephew, an Admiral, had a daughter with a black woman out of wedlock. The girl was born a mulatto, or mixed race. The Admiral took her to the house of his uncle, the Chief Justice, where she grew up.

Dido Elizabeth Belle, as the girl was called, had access to the privileges of high society, but faced deep prejudices. She was never allowed to have dinner with the white family, as was the social custom of the time.

She was beautiful. She received a sizeable inheritance from her deceased father, but societal customs and prejudices mattered more than beauty, more than humanity, and even more than money.

Law has a duty to uphold progress and morality, a duty to protect us from ourselves. Laws that allow us to diminish the humanity of anyone turn into a framework for criminality; they make countries and societies lose hope.

In his final decision, CJ Murray had the courage to assert that slaves were not mere cargo. He stated that evidence showed the ship docked in eight ports where water could have been replenished.

SUBTLER THAN RACISM

Therefore, he concluded, the slaves were drowned together because the slave traders chose that insurance compensation would have been a greater gain than the sale of malnourished and sick slaves; the slave traders had committed a fraud.

In his decision, Chief Justice Murray went further and declared that it was not legal to discharge lives to facilitate insurance compensation. And more importantly, that it was “not legal and not right”.

Pounding the gavel, he said, “Let justice be done though the heavens may fall.”

This story, immortalized by Amma Asante’s film Belle, repeats itself again and again in our modern society. Perhaps it is no longer about racism, but against subtler, equally dangerous prejudices.

We judge peoples and persons by their origin, second name, skin colour, customs, background, circumcision, or economic status.

We blame law for our disorganisation, poverty, and misuse of public funds, yet law without the will is of little help. We blame the Constitution for what is perceived as a devolution failure that has more to do with prejudices and the reluctance to work together, and less to do with the law itself.

SIMPLY OBEY THE COURTS

This is the mistake of men and women who see in every problem the same solution, to change the law.

More than further changes in the law, Kenya needs a change in our attitude towards the law. We need to let the Judiciary do its job, even when it makes uncomfortable decisions, which is part of the Judiciary’s job description.

No one can reach an agreement with the Judiciary to "work together".

The Judiciary must be obeyed, for like in the Zong Massacre, a good Judiciary makes history constantly. This history must be judged in a historical context, and not in the eyes of immediate political gain.

The rule of law is fractured every time anyone, Parliament or the Executive, claims to have the power to decide which court decisions to accept or reject.

This is why working together with the Judiciary simply means obeying the courts, no matter how absurd their decisions may seem to be.

The Judiciary judges the actions of Parliament and the Executive. But the Judiciary is judged by history.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi