Advent of free-felon democracies and the spectre of State capture in Kenya

Kibe Mungai


By Kibe Mungai

“My father is a businessman trying to provide for his wife and children, and those friends he might need someday in a time of trouble. He doesn’t accept the rules of the society we live in because those rules would have condemned him to a life not suitable to a man like himself, a man of extraordinary force and character. What you have to understand is that he considers himself the equal of all those great men, like presidents, prime ministers and Supreme Court judges and governors of the states. He refuses to accept their will over his own. He refuses to live by the rules setup by others, rules, which condemn him to a defeated life. But his ultimate aim is to enter that society with a certain power since society doesn’t really protect its members who do not have their own individual power. In the meantime, he operates on a code of ethics he considers far superior to the legal structures of society” – Mario Puzo, The Godfather

There is a new order in the democratic world principally characterised by attempted and actual take-over and capture of State power by criminals-turned-politicians, who would be rotting in jail if the legal and criminal justice systems of their countries were effective or credible.

In so many democracies across the world, former jailbirds and politicians who have committed serious crimes without trial and conviction have managed to seize power through elections, or might soon attain power if and when circumstances permit. For ease of reference, this article uses the term “free felons” to describe the politicians and political actors who have committed serious crimes – previously categorised as felonies – but who the criminal justice system of their respective counties have not caught up with, or they have simply served their imprisonment terms and are now free men and women. At least seven out of Kenya’s 47 governors fall within the strict definition of the free felons. And since 2013, at least 200 MPs and senators have fallen within the category of free felons.

In all fairness, the phenomenon of State capture by free felons is not a recent one. In 1923, Adolf Hitler staged an abortive a coup in Munich, Germany, leading to his arrest and trial in 1924. He used the trial to propound and spread his ideas and turn himself into a celebrity in a country that was awash with anti-Semitic prejudice. At the end of the trial, Hitler was convicted and sentenced to only five years in prison, “a sentence often taken as a sign of tacit agreement with his views” according to Robert Wilde. Instructively, Hitler served only nine months in prison during which he wrote Mein Kampf (My Struggle), a book outlining his theories on race, Germany and Jews, and reckoned that after all he could seize power himself instead of playing kingmaker.  In April 1931 Erich Koch–Weser, the former Minister of Justice of the German Republic, wrote in Foreign Affairs as follows:

“Greater danger is threatening at the present time from the National Socialists, popularly called the Nazis. This movement comprises the large ranks of the disinherited declasses – middle-class citizens, officials and landowners. All of these deserve our sympathy and pity… They call themselves Socialists and probably really mean to be. But they use the word “Marxists” as a term of opprobrium and reserve it for their adversaries. Their “Socialism” is hatred of Capitalism; their “Marxism” is hatred of social democracy. Whether this party will even make up its mind to take the leap and try an assault upon the Republic is extremely doubtful.”

We all know that subsequent events proved Koch-Weser tragic