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Saturday, May 27, 2017

Are extrajudicial killings by police moral or legal action?

Lawyers and civil society members during demonstrations against extrajudicial killings following the deaths of human rights lawyer Willie Kimani, his client boda boda operator Josephat Mwenda and cab driver Joseph Muiruri, July 4, 2016. /JACK OWUOR
Lawyers and civil society members during demonstrations against extrajudicial killings following the deaths of human rights lawyer Willie Kimani, his client boda boda operator Josephat Mwenda and cab driver Joseph Muiruri, July 4, 2016. /JACK OWUOR

A minute is only 60 seconds. However, when viewing a recent video on the extrajudicial killing of two suspected Super Power gang members by a plainclothes policeman, it seemed like an eternity.

It was reported that the two young men were members of the gang, which was among those outlawed by Interior CS Joseph Nkaissery. As the video went viral, opinions were varied. Investigations have since been launched by the Independent Policing Oversight Authority, to establish the circumstances surrounding the executions.

Now imagine that you are driving a train. Suddenly as you navigate a bend, you see five men working on the track. The realisation dawns on you that you do not have sufficient time to stop the train. There is no doubt in your mind that you will crash into these five workers, and they will all die. Then you remember that the train has a switch that can divert it onto a different track. And just as you are about to hit the switch, you see another man working on the other track. Should you hit the switch, you will kill one man and save five. If you do not, you will save one and kill five. Whatever choice you make, it will lead to people’s deaths.

What would you do?

Let us presume, that as reported, the two suspects had a notorious past. An infamous past that they evidently flaunted on social media, and, as we have been informed, they were in fact about to commit a robbery. Was it then morally or legally right for the policeman to save the many who would have been robbed by killing the two, or should they have spared the two at the expense of the many? The public reactions that have since emerged have been both legal and ethical.

These reactions should not surprise us. The law and morals are the two compasses that dominantly steer us towards good and socially acceptable behaviour. The former achieves this principally through the threat of penalties should we break the law; the latter through gratifying emotions of virtuousness. In deciding which action to take, we are governed by two sovereign masters — pleasure and pain. The premium we put in our actions is dictated by whether the result will promote pleasure or decrease our pain. This is utilitarianism (J Bentham).

Let us revisit the suspects’ shooting. Our associated reactions were motivated by whether the policeman’s actions caused us pleasure or pain.

On the one hand, those who expressed support for his actions found pleasure in it because they, too, or others they cared about, had undergone pain at the hands of these or similar suspects. And they did not shy away from expressing this through various social media platforms. On the other hand, it is likely those who opposed had not had an experience or an encounter with such villains; and hence they found the act of ‘murder’ painful. Our reactions ground-truth the principle of utility. This theory commends an action if it produces the greatest good for the greatest number. Conversely, it condemns an action if it achieves the opposite.

But should this justification lie in the numbers or in human fundamental rights? Indeed, many people rightly observed that the greater good that would come about by killing the two suspects should not override their individual rights, and that of due process. The looming question to Ipoa therefore is, in whose favour will they rule? Will the ultimate arbiter be the principle of utility or the Bill of Rights?

As Henry Hazlitt postulates, in primeval societies, morals, laws, customs and manners were not disparate mores. Rather, they were an undifferentiated whole. This is known as the natural law. The Greeks advanced the theory that rules based on reason were law by nature and they proceeded from God, and that what was right by nature was right by convention. It was believed that it was the “reason of the divine wisdom governing the whole universe.”

He goes on to state that the separation became more definite and explicit through the Anglo-American common law, when individual judges realised that law and its application must be certain, uniform and predictable. This is called codified or positive law. They recognised that decisions in one case must be consistent with decisions in another, and that the decisions of one court must also be consistent with those of other courts to avoid being overthrown on appeal. And from it grew the reverence for precedence, whether that precedence was rational or not.

In more recent times, we have seen a rendition of the natural laws being applied as a judicial response designed to promote communal healing and rebuilding. These were the Gacaca courts established in the wake of the Rwandan Genocide. In this system, communities appointed their judges to hear the trials of genocide suspects. These courts promoted reconciliation by providing the perpetrators an opportunity to confess their crimes, show remorse and seek forgiveness in the presence of their victims or communities. The courts passed a lower sentence if the perpetrator was repentant and sought reconciliation with the community.

Should Ipoa perhaps consider a hybrid of both the natural and positive law in making a determination of this and other similar cases?

This is Easter. Jesus, the Son of God, was clearly not a utilitarian. His divinity accorded him the self-knowledge of the pain he was about to endure on the cross at Calvary. And akin to lost innocence, however unsettling he found it, he could not unthink it or unknow it. He endured pain for the greatest good for the greatest number.

In tandem with the season, I encourage you to go against the utilitarian grain and endure pain for the greatest good for the greatest number by reaching out to the less fortunate.


Legislation is a circle with the same center as moral philosophy, but its circumference is smaller – Jeremy Bentham

The writer is a political economist


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