Constitutional basis of State criminal punishments

Options for the people and governments of Africa


By Dr Charles Khamala

By analogy with organic life, J.C. Riddall (1991) illustrates that a legal system exists when it is independent and healthy. This means, first, that the laws, which are valid according to the system’s rule of recognition, are, in practice, obeyed by the majority of the population and, second, that the relationship of the officials to the secondary rules must be ones of collective acceptance.

Thus it is a necessary, not sufficient, condition for officials to comply with or conform to secondary rules. Neither should their obedience simply accrue out of sloth or apprehension. Under Chapter Six of the Constitution of Kenya, State Officers should not simply obey the secondary rules, but internalise leadership and integrity values. On one hand, constitutional law comprises rules of recognition and rules of change, as Eric Colvin (1978) explains. Yet, “rules of change may well be a sign of a developed legal system, but this does not hold for other kinds of secondary rules of adjudication and enforcement, widely encountered in simple societies.” Thus, on the other hand, procedural law regulates the process of adjudication.

Judges resolve disputes between citizens as well as between citizens and leaders. However, according to Yash Pal Ghai (1993), Kenya has, since independence, leaned towards a trend of patriarchal patrimonialism, where the ruler governs more directly without any limitation to executive power to sanction. While Emile Durkheim (1893) notes, “Penal sanctions are associated with the rise of centralised government and cultural heterogeneity and conflict”. Simultaneously, penal evolution entails “a development from characteristically repressive law in simple societies to restitutive law with compensatory sanctions in complex societies.” He believes that restitutive “law plays a role in societies analogous to that played by the nervous system in an organism.”

This article argues that colonialism ousted African customary adjudication of pre-colonial traditional societies, arguably based on restorative justice, and replaced it with repressive law. A century later, Kenya’s Second Republic, under the 2010 Constitution, attempts to create an autonomous legal system, but without making it sufficiently responsive to the ordinary people who demand alternative governance ideologies. This is because no consensus exists regarding the rules to resolve disputes, about legitimate use of power, which emerge between the leaders themselves. Critics assert that both the constitutional means of power transfer, through a democratic election of representatives, as well as adjudicative means of allocating goods, through judicial review, have failed. There emerges uncertainty about and contestation over the Executive’s monopoly power to punish.

The function of constitutions

Constitutionalism means limited power. Both the contractarian notion and the dialogue notion of agreement imply a procedural criterion of consensus building as opposed to an outcome criterion of legitimacy. Pheroze Nowrojee (2005) writes, “The legitimacy of constitutional principles is judged not against some pre-defined ‘ideal system’ but in terms of the process from which the principles emerge.” For him “successful constitutions, constitutions that work, are the product of a peoples struggle to solve some deep inevitable conflict within themselves.”

Furthermore, that “out of the conflict emerges resolution that remedy, then is embodied in a constitution to prevent the conflict from arising. That is the constitution embodies the remedies that the people have worked out from the conflict.”  Procedural fairness is considered not as a matter of the quality of interests that enter into constitutional choice, but as a matter of the constraints under which such choices are made. Accordingly, we can see that the conditions that make constitutions necessary are based on, in the first instance, “mistrust.” Presuming that human nature was not depraved, and further presuming that informal social institutions were sufficient to control behaviour, then we would not require organisational rules or constitutions.

However, before and after two World Wars, the 20th Century witnessed the phenomenon of what Jean Bayart, Stephen Ellis and Beatrice Hibou call “The Criminalisation of the State in Africa” (1999), whereby the state managers turned the instruments of power against its own people. That falsifies Ulrich Preuss’s (1996) argument where, “constitutions contribute to the integration of a society if they embody the goals, aspirations, values and basic beliefs which that society’s members commonly hold and binds them together.” Moreover, Karl Popper (1945) observes that good constitutional principles not only restrain those who may place rash hands on the ark of government. We can add that they should simultaneously liberate, protect and provide a just society for the people to develop their maximum potential. Thus, in the second instance, constitutional conditions also entail an element of social capital or “trust.” Trust is informally generated in plenty by traditional African communities. Given the challenges of modernity produced by industrialisation, and of globalisation generated by the information revolution, does Kenya’s 2010 Constitution strike a healthy balance between distrust and trust? Is the Legislature motivated to enact statutes that redistribute wealth and give effect to constitutional socio-economic rights, thus enabling citizens to equalise differences? Does the administration of justice dispense procedural fairness so that whilst the guilty get punished, the innocent go free?

If no judicial power is exercised to state the valid rules according to an external factual criterion to resolve competing claims, an adjudicative problem arises. What happens if public actors do not regard the secondary rules as a common standard for action or decision-making? It is the constitutional court that is accorded a central role in securing disputes between the State and individuals. If its decisions are perceived as being dependent on Executive direction, then public confidence is eroded throughout the economic system, repelling potential investors. This is because actors cannot rely on the supreme decision-making body to apply purely formal logic to settle disputes, without succumbing to substantively irrational or extraneous considerations. Lack of a common standard results in conflicting judicial decisions and ultimately a “normative crisis” ensues, to which Jürgen Habermas (1975) recommends procedural dialogue as a solution.

Kenya’s 2010 constitutional referendum was the product of national dialogue about how we are to live together. Subsequent social disillusionment, notwithstanding some devolution of economic and political power to the counties, raises issues regarding whether or not another referendum is necessary so as to save “wananchi” from their government. Thus the official opposition, Coalition for Reforms and Democracy (Cord) proposes to “Okoa Kenya” by postulating even newer governance arrangements with greater responsiveness to ensure real change in the ordinary citizen’s lives. Or is it, perhaps, that failure to substitute the conservative leadership at the 2013 General Election, necessarily acquiesced in Jubilee’s failure to implement the new dispensation, whereupon the solution demands a change at the 2017 ballot?

Habermas’s concept of “legitimation crisis” assumes that social conflicts emerge in the form of “economic crisis”. Without shared cultural values, agents may not have any motivation for submitting their disputes for resolution at judicial forums. Prior to courts adjudicating micro-disputes, constitutional adjustment must resolve the fundamental macro crises facing the republic. On what basis can violence be legitimately exercised? The argument of this article is that, in a democracy, all coercion is by consent. Such consent may be collective, as when elected representatives enact laws authorising wealth redistribution, hence “no taxation without representation”. Alternatively, it may be individual, as when suspects are prosecuted or convicted of an offence. The latter cardinal principles are encompassed in the maxims “no crime without a law” and “no punishment without a crime.”

Liberal and Conservative Law

A lengthy quote from Phillipe Nonet and Philip Selznick (1978) is apt.
“Conservative alarm over the invasion of authority, and abuses of legal activism, and breakdown of ‘law and order’ is echoed in a renewed attack that stresses the impotence and corruption of the legal order. In the neo-marxist critique, two themes predominate. First legal institutions are said to be inherently tainted, sharing the deficiencies of the social order as a whole and serving primarily as instruments of domination. Here the all-too-evident bias of the law, favouring the haves and short-changing the have-nots, is cited as decisive evidence. Second there is an attack on ‘legal liberalism’ itself, on the idea that justice ‘can’ be served by a purportedly detached, impartial, autonomous system of rules and procedures.”

They wrote about worldwide normative turmoil of the 1960s with “‘the rule of law’ unable to cope with basic issues of social justice and itself a main support of power and privilege partakes of a deeper corruption.” Applying their words to present-day Kenya, “the current crisis of authority (is) poignantly displayed by the two faces of justice. On one hand, some courts and some sectors of the legal profession made themselves spokesmen of the disprivileged; they interpreted their mission as the enlargement of rights and the fulfilment of the latent promise of the Constitution – full citizenship for all – and the movement for social advocacy and public interest law.”

On the other hand, Nonet and Selznick lament how “law wore jack boots and acted repressively to stamp out the fires of discontent.” While Kenya’s Parliament has legislated to criminalise not only first-order primary crimes of larceny and homicide, controversy surrounds the criminal justice system’s abysmal record regarding responses to second-order primary crimes, like treason, terrorism, miscarriage of justice, or even corruption. On one hand, suspects appear not merely protected by due process safeguards, but exhibit downright impunity.

Whistle-blowers comprise ordinary citizens agitating against conspicuously unfair and unequal wealth distribution and consumption. Yet, because restricted opportunities or resources limit access to legitimate means of redressing the imbalances, protesters invariably resort to illegitimate modes. Electoral and judicial apathy are evident in the social disorder manifest, first, in rising petty crime by the underclass and their willing participation in public demonstrations; second, by the government’s resort to “rule of force,” rather than rule of law to conserve the status quo.

In May 2016, several Kenyans died – including from gunshots – while scores were arrested, when Cord’s protests to remove the Independent Electoral and Boundaries Commission became increasingly violent. Most regrettably Boniface Manono, 36, was pictured fleeing from a building as a policeman in riot gear first beat him with a wooden baton, then followed him into the street, kicking him as he lay on the ground, before appearing to stamp on his head. Without even being arrested or charged for any suspected offence, leave alone hospitalised, he was left for dead. That unfortunate incident illustrates how, to balance between serving two masters, namely public security and individual liberty, law chooses between either “low-risk” social control measures or “high-risk” freedom approaches.

In Nonet and Selznick’s words, the government’s “law and order” or conservative policing approach emphasises how great the contribution of the legal stability to a free society is. Moreover, such disproportionate use of extra-judicial force, rather than arresting, charging and prosecuting suspects to prove their eligibility for judicial punishment, demonstrates “how precarious systems of authority and of civic obligation” are. Because law is a vital ingredient of social order, and further because other sources “cannot be relied upon to save society from arbitrary will, unreason, intimidation or worse,” therefore only under a high regard for constituted order do elite “people experience the security they need for genuine freedom of choice.” Conversely, under a responsive, liberal or freedom approach “the potential resilience and openness of institutions” is emphasised. This alternative model is “sensitive to the fact that law characteristically upholds a specific ‘kind’ of order in the form of received moral codes, systems of status, and patterns of power.”

Consider the above example, which depicts Manono, who suffered horrifying injuries to his head, thighs, hip and back. Yet, he “insisted he was simply going about his business, only to end up in the protests, running when riot police tear gassed some of the crowd.” For not even expressing, leave alone exceeding his Article 37 right to civil disobedience, he was absolutely battered against the concrete pavement. “Wananchi” peacefully vilified IEBC for perceived corruption. Yet the police cracked down using “extra-constitutional powers” at the Executive’s instance.

Repressive policing

Clearly, Inspector-General of Police Joseph Boinett requires urgent tutelage from Attorney General Prof. Githu Muigai, not only regarding the scope of the law of trespass to municipal property, but also on the demerits of deploying repressive policing tactics to trespass against people’s rights to bodily integrity. Underlying the immediate question of whether that rogue policeman’s boots amount to reasonable and necessary force required to disperse a riot under Section 83 of the Penal Code (Chapter 63 Laws of Kenya) or police brutality, is the issue behind the protest. Is the public justified in protesting against the leadership’s refusal or inordinate delay amounting to unresponsiveness to eliminate perceived grand corruption or criminal justice system’s apparent unfair prosecution policy, which amounts to indirectly acquiescing in crimes by the rich to thereby hide bread from the hungry?

Economics Nobel Laureate James Buchanan (1986) classifies the restrictions on others’ actions as “goods.” He further defines “the economic problem” as one of allocating scarce means (resources) among alternative ends. Choice is made necessary by the scarcity of means (here people), and that which is desired (utility) is maximised when like units (standardised according to an accepted rule) of resources yield equivalent returns to all uses to which they are put. In Nonet and Selznick’s “high-risk” or liberal approach, “law is valued as a resource for criticism and an authority that can preserve itself and be better if it is open to reconstruction in light of how those who are governed perceive their rights and reassess their moral commitments.” They conclude that where law is “responsive, the system should be open to challenge at many points, should encourage participation and should expect new social interests to make themselves known in troublesome ways.” To what extent should a constitution meet civil disobedience with toleration and with a willingness to negotiate new a basis of coercive authority?

The answer reflects the political morality of the majority in any given population. The colonial problem was not one of irresponsible citizens, but of irresponsible officials. Given that Kenya’s post-independence constitution remained repressive, therefore the comprehensive constitutional reform process was aimed at making it responsive. The “Second Liberation” struggle was primarily waged by human rights activists who were detained without trial, exiled or assassinated. They demanded not only enactment of substantive socio-economic rights to alleviate the suffering of the vulnerable groups in society but, as suspects, also procedural due process to protect the exercise of civil and political rights from interference by State representatives – consisting of home guards who they distrusted.

Neither should unelected judicial officials overestimate the presumption of innocence so as to exempt the guilty and perpetuate impunity. By introducing a leadership and integrity requirement, imposing, inter alia, values of selfless service and weighty ethical responsibilities on all State officers, the 2010 Constitution thus uniquely balances distrust with healthy trustworthiness. If custodians of public trust are to avoid complicity in covert criminality, it is essential to understand the genesis and evolution of the power to punish and that state power only subsists for its given purpose. If betrayed, then the people retain the residual duty to abolish a tyrannical government.

From traditional to modern punishment

The 17th century Enlightenment Period in European history established modern nation-states based on utilitarian logics whose hedonistic crime theory construes criminals as atomised, rational, self-interested maximisers. Its penal purpose seeks deterrence, both of specific as well as potential, offenders from repeating past crimes. Both Cesare Beccaria’s (1764) and Jeremy Bentham’s (1781) imprisonment models propose a felicific calculus calculated by calibrating crime according to time. Hence to replace Mosaic (“Exodus” 21: 23-27) reliance on harsh “lex talionis,” or “eye for an eye” retributive punishments, meted out through inhumane methods, utilitarian sentencing principles introduced proportional and non-retroactive punishments.

When late 18th century French society was in an uneasy transition from one state of solidarity to another, Emile Durkheim (1893) conceived his anomie theory. Describing that country’s Second Republic, he argues that mechanical social order lay in the simpler past of a less differentiated pre-industrial society, which gave rise to “mechanical solidarity.” The “conscience collective” comprises norms and values shared by members of society representing the foundation for social order. Punishment arises as the retributive aspect from emergent-shared outrage, which functions to affirm that conscience, upon violations or aggravation of it. Because peasants living in close proximity of villages possess similar values, their punishments tend to be harsh (Durkheim 1902).

Conversely, in industrial societies with division of labour, such as became characteristic of the emergent French Third Republic, individuals of different occupations have less in common. Correspondingly, diverse collective sentiments gave rise to weaker “organic solidarity,” which punishes relatively leniently, but covers more acts. Nevertheless, both societies, whether traditional and modern, seek to extinguish the retaliation cycle from escalating into social division. This is achievable by taking the right to retribution away from crime victims. Thus the role played by religious rituals in traditional societies involves usurping the individual’s need to perpetrate revenge (Durkheim 1908).

René Girard (1977) identifies, on one hand, traditional societies that perform sacrifices to “trick” victims of crime violations that offenders will be punished in hell or forgiven in heaven. That is why upon performing prescribed rituals, priests or shamans purport to cast out demons upon penance. On the other hand, instead of relying on angels to save souls, modern states use judges who pronounce the rule of law to recognise individual victim’s aesthetic value as equal members who have suffered moral wrongs. In the Medieval Age, where counter-violent activities disturbed the King’s peace, monarchs used ecclesiastical “rituals” and “divine right” to restore social equilibrium between victims and criminals.

Separation of powers

However, without separation of powers, such accompanying repression remained subjective and unaccountable, and therefore fomented revolution. To the extent that the form of law in simpler societies is closer to torts than crimes, and sanctions were primarily compensatory; Durkheim’s “laws of penal evolution” are partly falsified by empirical evidence. Discussions of other demerits of the retribution justification of punishment are beyond this essay’s scope.

Perhaps some lenient responses also accompanied African traditional “pre-legal” remedies such as compensation and reconciliation restored social harmony and equilibrium. Suffice it to note that various tribes occupying the geographical location of pre-colonial Africa sometimes meted out retributive justice through banishment or burning extreme offenders. Nonetheless, to reiterate, Durkheim was partly correct to “recognise that penal sanctions are associated with the rise of centralised government and with cultural heterogeneity and cultural conflict.” It was under colonial rule that repressive law became the exclusive policing approach of bypassing law enforcement.

In the early 20th century, appeals to the East African Supreme Court were reserved for minority white settlers. Moreover, despite pretentions of dispensing equal liberal justice, the post-independence constitution failed to decolonise the repressive penal practices. Key among Kenya’s Second Liberationist’s concerns was to reject the culture of extra-judicial executions. This was achieved by vesting adjudicative authority in the judicial branch, thus making independent criminal justice agents autonomous from crime suspects and victims.

Nowadays, the judiciary may independently apply rules to the facts according to prescribed procedures.

Yet the formal structures regarding judicial appointment and tenure enshrined in the 2010 Constitution merely create an autonomous edifice. For a variety of reasons to do with ethnicity, poverty and perhaps political immaturity, no participatory role was devolved to citizenry juries to determine matters of fact or mitigation of sentences. Unlike the right to participate in law making enshrined in the right to vote, Kenyans remain excluded from their civic duty of law applying. To understand why, in modern states, the criminal justice agencies are frustrated in the anti-corruption war, it is not only necessary to appreciate that law replaces religion as the rationaliser of punishment, but also that there are inherent limitations of deploying liberal law as an abstract superstructure in the African context.

Received Penal Law

Alan Norrie (1993) argues that “the rule of law develops historically as a form of mediation of relations of power between groups, classes, elites and genders, and that the forms it takes are fundamentally conditioned by the social conditions in which it operates.” Their relationship conditions the emergent social consensus with respect to the social inequalities. Further “the struggle between the social classes took the form of the determination of right.” He cautions that where labour unrest prevails, however, it is not possible for the government – as representatives of capitalist interests – to rule using the “abstract” legal forms, i.e. “mens rea” (mental element), “actus reus” (criminal act) or causation, etc. Instead, “In their place, authoritarian measures are adopted without respect for the rule of law.” Norrie thus attributes the successful use of law to rule 19th Century Britain to her relatively stable society, where the relations of property distribution were largely accepted by a “cross-class consensus.” First, because the UK imperial economy possessed surplus capital – courtesy of the transnational slave trade. Second, because of the uniting purpose of the colonial project.

Kenya became a British protectorate in 1895. By the 1897 Judicature Ordinance (now Chapter 8 Laws of Kenya), the statutes of general application in force in England on 12th August 1897, together with common law and equitable doctrines became the governing law. Section 3(2) of that Ordinance expressly ousts not only African traditions which are “repugnant to justice and morality,” but also customary criminal law in entirety. Eugene Cotran (1967) notes that the 1930 Penal Code, based on the 1899 Queensland Penal Code, introduced punitive offences. The 1930 Criminal Procedure Code (Chapter 75 Laws of Kenya) established the relevant investigation and trial procedures, while the Evidence Act (Chapter 80 Laws of Kenya) regulates the standard of proof.

Significantly, as stated earlier, the indigenous African majority population were denied audience to the colonial Supreme Court. Thus Ghai and McAuslan (1970) explain how, commencing in the early 1920s, the African nationalist movement was underpinned by a search for constitutional rule. To the extent that the British colonial state was unable to apply liberal laws even-handedly between the races, it failed to rationalise unequal distribution of resources and statuses. By the late 1940s therefore, the “Mau Mau” militia group commenced a bloody struggle for land and freedom. To quell rising mass criminality, the colonial regime – lacking social consensus to rule by law – became increasingly repressive, culminating in a declaration of a state of emergency in 1952.

Durkheim believes penal evolution to be reflected in a development from characteristically repressive law with penal sanctions in simple societies to restitutive law in complex. Kenyan historical experience proves him wrong. We observe how in post-independence Kenya, rather than state criminal punishments becoming restorative, successive governments deployed police repression. Notwithstanding modernisation, continuing discriminatory economic distribution and unequal treatment by the criminal justice system spawned new vigilante groups.

Towards late 1980s, squatters coalesced into outlaw groups like “Mungiki” in the Rift Valley spreading into central Kenya and Nairobi, while others like the “Sungu Sungu,” emerged in Gusiiland. Excluded youth became mercenaries, whether the Taliban, Dallas Cowboys or “Jeshi La Mzee”, filling vacuums in which formal law enforcers were absent. They selectively invoked pre-colonial traditional criminal norms, such as draconian executions for populist self-help.

Opportunistic warlords fuelled intermittent, inter-ethnic conflicts. Particularly during electioneering season, militias became thugs for economic exploitation and political mobilisation. However during inter-election periods, their disrespect of formal law simultaneously created a “normative crisis.” This lent credence to the state’s abandonment for formal constitutional safeguards, criminal procedure and warrants embracement of counter-violence through repressive policing, even targeted killings. The rise of terrorism exacerbates these extra-constitutional powers.

In expressing exasperation about the criminal justice system’s lethargy in fighting corruption, President Uhuru Kenyatta recognises that crime is not a brute fact. He decries the fact that as a democracy, Kenya cannot subject corruption suspects to a firing squad at Uhuru Park to get out of this social malaise. Rather, before the Executive can punish or pardon individuals for engaging in undesirable social practices, judicial officials must pronounce their guilt and prescribe sentences. Yet because graft is a silent, secret phenomenon, the majority of Kenyans do not express abhorrence for this vice.

Shift in perspective

Although it is formally proscribed, inter alia, by the Anti-Corruption and Economic Crimes Act, 2003, and notwithstanding the Court of Appeals’ 2015 shift in the presumptive burden of proof onto suspects to demonstrate the legitimate sources of unexplained assets, the DPP nevertheless still exercises his discretion not to prosecute corruption suspects “in the public interest.” Keriako Tobiko is vindicated by ethnic heterogeneity, widespread illiteracy as well as poverty, which render the public jury prone to bias, emotion or other irrational decisional criteria. Reminiscent of Jomo’s use of pun, Uhuru’s cynical release of “chicken thieves” by presidential pardon in October may be interpreted in poetic parlance as exonerating infamous “Chickengate scandal” election officials from investigation or prosecution for receiving bribes from UK printers.

The upshot is that complex financial fraudsters are too remote from public psyche to attract social revulsion.

Given corruption’s apocalyptic humanitarian consequences of destroying the poor, and the unwillingness or incapacity of developing country authorities to prosecute suspects, its punishment would be more effective if kleptocracy were declared an international crime punishable under the Rome Statute at the International Criminal Court.

Writer is Andrew W. Mellon Postdoctoral Fellow at Rhodes University, South Africa, and advocate of the High Court of Kenya;


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