In Summary
  • The colonial idea was to divide and rule, to separate the races and create “safe heavens” for the invading powerful minorities.
  • This is the legal system we inherited at independence. It was organised, clean and neat, but designed to segregate.
  • n post-independence Kenya, we missed the historical moment to address such injustices.
  • We have developed the habit of breaking the law. In our day-to-day affairs, only militarisation can keep “law and order”.

We like the rule of law in abstract but we hate and despise its application in our daily lives and relationships. We preach the rule of law from top to bottom, in schools, in conferences, in churches, in corporate and everyday politics. Yet, we easily and happily disobey laws from bottom up.

Take a quick look at Nairobi, one of the best originally planned cities in Africa. Just think for a moment of any matatu terminus around rich or poor Nairobi. The place may be tarmacked or potholed, with or without signage, with or without policemen… It could be Westlands, Lavington, Juja Road, River Road, Nairobi West, Kitisuru, Donholm or Buru Buru in any of their phases.

Think also of road signs, forests, road reserves, quite a few buildings, particularly the so-called Kikuyu-Gothic architecture prevalent on Thika Road, Zimmerman, Wangige, Gachie… Picture the times you, yourself, have broken any law because there was no camera or no policeman on sight.

We dislike the law, but love our customs

It is evident. We have a social disdain for the rule of law…but not for any rule of law. Think too for a moment of other laws; those customs revered so sacredly by different communities across Africa. In-laws in Western Kenya would never dare to spend a night in the house of their father in law. Think also of any man from central Kenya who may dare to go on without circumcision…he risks facing the knife in the middle of the street, and it has happened to more than one in Karatina.

We scorn some laws but we respect others. We revere our traditional laws, even if nobody is looking at us. Instead, we easily mock police instructions, ministry directives, acts of parliament…anything unless a gun is pointed at us. Why?

Prof Patricia Kameri-Mbote, my teacher and mentor, answered this question at Taifa Hall, during the presentation of her higher doctorate (LL.D.) She was referring to wildlife and forests when she gave us the key of our legal drama. She said, “The militarisation of wildlife areas and forests happens when we have more people wanting to break the law than those protecting it. This is a result of our colonial days when breaking laws was a matter of survival for Africans.”

The colonial laws were there to favour the white master

I found this statement to be deep, true and sad. The legal system handed down by the colonial masters was a tool of oppression; it was the excuse to keep Africans down to increase social advantage, pleasure and bigger profits for the coloniser.

This is how Africans were arrested and fined if they uprooted tea or coffee trees, if they sat on the whites-only section of a bus, if they walked at night in white neighbourhoods. Life and education were segregated; freedom of movement was restricted and freedom of association was carefully monitored.

Mercy Muendo published a fantastic piece some years ago in The Conversation. She argues that some of these laws can be “traced back to legal ordinances that were passed by the colonial government between 1923 and 1934.”

Was I born a vagrant, vagabond, barbarian, savage or Asian?

For example, the “1925 Vagrancy Ordinance restricted movement of Africans after 6pm, especially if they did not have a registered address.” These laws differentiated white settlers from “other created categories of persons known as ‘vagrants’, ‘vagabonds’, ‘barbarians’, ‘savages’ and ‘Asians’.”

Page 1 of 2