WILLY MUTUNGA: Our youths are crying for humanity

The past, indeed, is not the past. It is also the present and can be the future!

The statements this week by the CS Internal Security, Professor Kindiki, and the Inspector General of Police Services, Japheth Koome can be put on a well beaten trajectory since colonial and post colonial times.

Both statements reflect the usual knee-jerk reactions of a state that believes it has the necessary machinery of violence to keep us natives in check without delving into the complex economic, social, cultural, and political root causes of the issue at hand. And that issue is the rising criminal gang activity among the Kenyan youth in Nairobi.

If the data available is telling us the truth then over 80% of our population is below the age of 35. That is the youth in our midst.

The youth in Kenya face total violation of their material interests. What is the quality of their education? Do they have jobs, the basis of any human being’s humanity and dignity?

Do they have universal health care? Do they have clean and safe water of adequate quantity? What about housing, social security, and freedom from hunger? Do we see the constitutional promise of these rights being progressively realized given the kind of political leadership we have?

How can these economic, social, and cultural rights be implemented if our resources are routinely stolen, wasted, and owned by the external and internal political leaderships? We should not forget that if our system had an iota of humanity it would have shown it during the COVID 19 pandemic.

What we saw was the inhumanity of Covid billionaires and multi-millionaires that the state did accept as criminal. Anchored in foreign interests the criminal enterprise, gangs, cartels, and those who put profits before the people, are the enemy of this country. Have we ever stopped to think whether or not these activities of the youth are the response to an inhuman economic, social, cultural, and political system?

Extra-judicial Killings

Extra-judicial killings in Kenya have comprised political assassinations by the state or through contract killings for all manner of reasons. The bulk of extra-judicial killings since colonial times, however,  have been borne by the Kenyan people themselves, particularly the youth.

The youth, too, fill our prisons, the ruling classes’ gulags for the poor, the exploited, and the marginalised.

On visiting Kamiti Maximum Security Prison on 2 October 2015, and having been a prison graduate of that prison myself, I publicly made my position of prisons clear: the abolition of prisons.

I still believe that a society without prisons is the ultimate epitome of humanity.

Those of us who are over 60 years old can recall the likes of Patrick Shaw, a police reservist, who enforced rule by law, and not rule of law. The killings of Rasta, Wanugu, and Wacucu by the police who were partners in their various crimes is still fresh in our memories.

The many killer units within the police (recently some were disbanded) with such scary names as “Kwekwe”, “Flying Squad”, and others are well remembered for their brutality, engaging in crime, and in extra-judicial killings.

As a criminal lawyer in 1984-1989 I represented bank robbers in court, knew their stories, their links with police officers, and watched as all them were extra-judicially killed. I met others when I was in Remand Prison. I learnt a trade there that I never practiced, namely, pick-pocketing. Without a doubt I saw all of them as victims of a system that was known for its inequality, marginalization, oppression, and exploitation.

What the CS and the IG respectively did was to declare war on the what they call urban criminals. The two played the usual card of “law and order” without reflecting on how disorderly, illegal, and illegitimate the system they serve is.

As individuals who are supposed be familiar with the Constitution and the law they seemed not to have the foggiest idea on the contents of Articles 1, 26, 49, 50, and 238 of the 2010 Constitution.

Article 238 decrees that national security shall be pursued in compliance with the law and with utmost respect for the rule of law, democracy, human rights and fundamental freedoms.

Indeed, crimes are being committed in the urban areas. One wonders whether these crimes are also not joint criminal enterprises between the police and criminal suspects.

What does the Constitution decree about it? Suspects of crime have rights and freedoms. Under no circumstances should the police violate the well laid down legal procedures of investigation, prosecution, and justice in the courts of law.

These suspects are constitutionally innocent until proven guilty by the courts of law. Fellow Kenyans who seem to glorify what they call “mob violence/justice,” a euphemism for the subversion of the Constitution and law, should also be prosecuted for crimes readily available in the Penal Code.

The famous words signifying no one is above the Constitution and the law are, “Be you never so high, the [Constitution, and] Law is above you.” The words are some of the anchors our judicial system.

If this happens in practice we would not be in doubt who the criminals are. And even these ones, I would not want them in any jail.

Jails are built by oppressive systems to subvert our rights and freedoms. Oppressive systems will never be the teachers of humanity.

Thou shall not Kill is a God’s commandment

The Constitution has the same commandment. Let us obey both the Holy Scriptures (those that support humanity, justice, equality, and equity and other values) and the Constitution.

Let us be clear about the root causes of our economic, social, cultural, and political system and focus on how to solve those problems. Our youths are victims of the system and the use of machinery of state violence, threats, and intimidations will never destroy the country’s future, the youth.

Here is yet another voice in the wilderness which will have to be heard by a system that beliefs it is ALL MIGHTY. History records how such systems fall by the wayside.

Willy Mutunga, Chief Justice & President of the Supreme Court, 2011-2016.