BY PHILIP OCHIENG
One of our basic assumptions rises from the premise that society’s collective good is what is served by the punitive measures that our courts of law impose on all convicted individuals. The question is: What social good did the courts serve when, the other day, one of them sentenced a 100-year-old woman to a prison term for “contempt” of the same court?
The answer that the run-of-the-mill judicial official is likely to give for such a sentence is that it is what the law lays down for a particular range of crimes. Thus the letter of the law remains the only criterion for sentencing. In short, whatever the law-book stipulates is – in Shakespeare’s phrase – “the be-all and the end-all here”.
There is no appeal to what the lawyers themselves might call “mitigation”. Concerning the woman, what could have been the mitigating circumstances? One was her age. Another was that she is probably illiterate. Did the court system bother to explain to her the nature of the accusation and the consequences if she did not follow the rules?
From the broader social perspective, then, even concerning such drastic crimes as murder, our judicial officials themselves appear to be prisoners of the letter of the law. A visitor from Martian planet would readily conclude that many of Kenya’s judicial officials have never heard of anything called the spirit of the law.
Knowledge of the spirit of the law would demand of all our judicial officials that, far from concentrating on the crime alone, they give a very good judicial look at all the personal and social circumstances in which the crime was committed. There are a plethora of circumstances that a court may consider as mitigating.
Yes, ignorance can be defence
They include action in self-defence, the age and social awareness of the person accused of the action. The latter renders completely meaningless and unjust the old Euro-liberal tenet that “ignorance is no defence”, a terribly unjust colonial policy which our legal elite have adopted without any critical examination.
It is self-evident to me that, in a situation fraught with mass illiteracy, ignorance must be formally inscribed as a defence weapon. There is also the question of affordability of justice. Did the court ever consider the old lady’s financial ability both to defend herself in court and to appeal to a higher court?
In other words, as it is now, the law is formulated to cater only for general categories. It has not dwelt on how every one of the plethora of particular murders, say, is to be punished. For in judging and sentencing teenagers, it does not lay down any criterion unmistakably different from that by which to deal with centenarians.
Tacitly, it leaves that kind of judgment to the personal intelligence, formal education and social consciousness of each judicial official. In other words, here, what makes the difference is not the letter of the law, but only the degree to which each judge and magistrate is aware that the letter of any law must sub-serve the social interest – the social spirit – which led to the formulation of that law.
No, it is not that any objective social interest ever ceases to be social in any circumstance. What changes from time to time is only the degree of achievement – or not – of each objective social interest expressed as a deliberate policy; so that, in time, the juridical formulation of a given social interest – the letter of the law-book – may begin to visibly stand in contradiction to the social spirit which had once inspired it.
In short, where the legal instrument does not change, the given society may have moved so far way in other directions that its original spirit is no longer in keeping with the law as it operates today; in which case – since the spirit remains social – the law is crying out to be either reformulated or removed altogether.
Will somebody with a locus standi please examine the woman’s whole case and inform the country whether the judicial department has treated her with the humanity and social knowledge with which all members of the department should treat all Kenyans?
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