All the laws on fire and the story of Ambira boys’ academic bonfire

The most enchanting or disgusting occurrence in the past week has to be the students of Ambira High School burning their books while simultaneously directing scurrilous words at two Cabinet secretaries.

This happened after the students had completed their final high school examinations and were acting in celebration and expressing liberty from high school.

Opinion is divided on whether the students deserved to be arrested and arraigned for these acts viewed by many as grave acts of misconduct.

The attitude of the law towards fire is that it is a very dangerous force or weapon whose use must be tightly regulated and misuse punished severely.

It is for this reason that the law creates several criminal offences relating to the use of fire.

ARSON

The most commonly known offence in relation to fire and property is arson. It is the offence of deliberately setting fire to property such as a building, structure (such as a granary), vessel (a vehicle), vegetable produce, fuel or a mine.

It is a felony which would attract life imprisonment on conviction. Even an attempt to commit arson would lead to imprisonment for seven years on conviction.

This stringent attitude flows from the fact that it is no defence to a charge of arson that the person charged was burning his or her own property.

Even the mere threat of using fire to burn or destroy another person’s property would be an offence.

The law known as threat to burn states that writing or knowingly delivering a message which threatens to burn another persons’ property or agricultural produce would be a felony punishable by seven years imprisonment.

PUNISHMENT

At its most practical application, this means that sending a mobile phone text message or making a phone call threatening to burn another person’s property is an action to which the law would express its disgust with the offence of threat to burn.

The law further shows its deprecation of use of fire on crops including trees or shrubs. The two offences of setting fire to crops or attempting to do so constitute felonies punishable by imprisonment of between seven and 14 years.

In further recognition of the fact that fire is a useful element to life, the law seeks to ensure that its use is prudent.

It goes ahead to state that any reckless or negligent use of fire without due regard to the risk of causing harm is an offence.

NOTICE

This concern for use of fire in a responsible way is perhaps best explained by the existence of law first enacted in 1942 by the title of the Grass Fires Act.

The declared reason for this law is to provide for control of grass fires to avoid risk to dwellings and farms arising from fires lit to burn vegetation or other rubbish in one property spreading to others.

This act somehow duplicates some of the offences stated above by declaring firstly that no person should light a fire on a property that does not belong to him unless he has lawful authority to do so.

It follows this prohibition with another to the effect that a person shall not burn any vegetation even on his own property unless he shall have given at least two days’ prior written notice to his neighbours.

This notice must be served by hand and must also give a specific time when the fire shall be lit.

The seriousness that this legislation gave to burning of vegetation can be seen in the fact that even where an employee is to set fire to vegetation on his employer’s land, such burning is required to be with the express permission, and with the supervision, of the owner of the property on which the fire is to be lit.

FIREBREAK

The Grass Fires Act also mandates the owner of land to require his neighbours to construct firebreaks to prevent fires spreading beyond the boundaries of the neighbour’s land to the other properties.

Local authorities were also permitted by this law to compel a property owner to construct a firebreak to avoid the spread of fire in the event of a fire outbreak in one property.

This apprehension on the danger of fire goes beyond property owners into the ordinary person. There is a provision within this law which mandated the owner of any property on which a fire has broken out or any police officer or fire ranger present at the scene of a fire to require any person or bystander around the scene of the fire to assist in controlling the fire.

The refusal to comply with this order would be a criminal offence.

The management of fire is not limited to the farms and outdoors. Employers and persons running various workplaces are also required to take measures regarding safety of persons in their premises from risks associated to fire.

SAFETY

The law governing occupational safety and health required the owner of the premises, usually the employer, to ensure that all stocks of inflammable material are stored outside the building from which the workers are situated.

In addition, the employers are required to comply with safety standards established to ensure that there would be safe and quick access out of the workplace in the event of a fire outbreak.

This duty would also extend to having fire management equipment such as fire extinguishers within the work premises.

Employers are also required to train and maintain a minimum proportion of persons in the correct use of fire management equipment in the workplace.

These laws tell the clear lesson that the law considers fire almost like a dangerous weapon of destruction whose misuse is penalised and for which proper means of control and management are prescribed.

SANCTIONED

Use of tobacco is one example of use of fire that the law does not prohibit provided the smoking of tobacco is within private and other controlled places away from children.

Thus tobacco products are one kind of property that the law does not prohibit the owner from setting alight.

Back to the controversy regarding the school boys who burned their books.

It is arguable that by burning the books, the students could have been committing a serious academic offence of destruction of knowledge, but no more.

The destruction of books or a person’s own property as a matter of protest is not a new one and in some instances even sanctioned by law.

Counterfeit goods and narcotics are destroyed by fire in exercise of legal authority to signify society’s disapproval of the goods and trade in them.

PROTEST

In certain instances, individuals, too, may have the right to destroy their own goods to express similar disapproval at government policy or society, generally.

The best known decision regarding the use of fire as an act of protest probably belongs to Gregory Johnson in protest to the policies of then US President Ronald Reagan.

In 1984, Mr Johnson burnt an American flag outside the convention centre where that year’s Republican National Convention was being held in Dallas.

The State of Texas, like Kenya, had a law which prohibited any act which desecrated the flag of the USA.

Mr Johnson was arrested and charged with violating the American flag in a manner that was likely to incite anger in others. Mr Johnson was tried and convicted for the offence.

He appealed all the way to the Supreme Court contending that his action of burning the US flag constituted “symbolic speech” protected by the First Amendment.

RIGHT

He further argued that the flag in issue was his personal property and that the State had no interest in his own property as to dictate how he managed it.

The Supreme Court agreed with Mr Johnson and held that flag burning constitutes a form of speech that is protected under the First Amendment of the US Constitution.

The majority noted that freedom of speech is intended to protect actions that society may find very offensive, but society’s outrage alone is not justification for suppressing free speech.

I am under no doubt that similar outrage and prosecution would be directed at anyone in Kenya who tried to burn the flag, which is also protected from being burned or desecrated by the National Flag Emblems and Names Act.

I would argue myself that the decision in the case of Mr Gregory Johnson would be a compelling argument in his defence in Kenya.

LAW

I am unclear, however, how a Kenyan court would decide this — given this country’s nationalistic and supposed patriotic fervour seen in its citizens’ outward wearing of clothes and arm bands of the national flag.

However, on the burning of the books, I would think that unless the books in issue belonged to the school or a third party, it is unlikely that any of the offences mentioned above could stick.

It may well be the case that there is a liberty to set fire to personal property such a memorabilia and books which the owner finds of no use to himself.

An academic bonfire is not one of the fires that the authors of the law may have contemplated when drawing the laws relating to fire.

The boys could be running ahead of the law on this one, leaving the law trailing in flames behind them, unless it is taken that the books belonged to their parents or the school.

My favourite judicial statement regarding fire is one of allegory which was recently echoed by a judge in England who said: A man who warms himself by the fire of fraud should not complain if he is singed.

Could it be that the students who warmed themselves by the academic bonfire in Ambira High School may yet be singed by public anger rather than the law?

Mr Owino is head of legal affairs at Nation Media Group.