When evil comes knocking at our door, whom do we turn to – our justice system?

Thursday January 24 2019

Chief Justice David Maraga

Kenyan Chief Justice David Maraga at the Supreme Court in Nairobi. As we talk about constitutional changes, we must also look at how the judiciary and the entire criminal justice system can be better aligned with the expectations of Kenyans. FILE PHOTO | NMG 

TEE NGUGI
By TEE NGUGI
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The 13-year old schoolgirl was walking home. A group of men grabbed her, cut her private parts to ease penetration, and then gang-raped her. The coup de grace? They pushed a stick into her private parts. They left her unconscious. She is now at the Nairobi Women’s Hospital undergoing reconstructive surgery.

It is hard to imagine that human beings would commit such a horrific crime. Why the gratuitous infliction of suffering on a fellow human being? How such a lack of empathy?

A character playing a Jewish Holocaust survivor in a movie wondered how it was possible for German soldiers not to see in the children, women and men they murdered with such casualness their own children, wives, sisters, brothers or parents? There was no easy answer. The character concluded that lack of empathy was the incarnation of evil.

The Germans could torture and then casually get rid of their Jewish victims after ordering them to pose for pictures because they considered Jews less than human beings. Empathy is between human beings and the Jews were not human. It was the same kind of depraved thinking that led peasants in Rwanda to hack to death a million of their neighbours after torturing them. There was no empathy. They were torturing and killing vermin.

In 2007/8 in Kenya, there was no empathy with those who were pulled out of matatus and hacked to death or for the disabled women burnt alive in a church.

The women in the horror tales from eastern Congo, tied to trees like goats and gang raped, their screams falling on deaf ears, on unempathetic souls, are not human. They are mere things. When one hears of all these atrocities, the voice of the old man in the movie whispers from the shadows: Evil is the lack of empathy.

Dealing with evil

The question is: How then do we deal with evil? African governments concern themselves with perceived infringements of their sovereignty.

The African Union is busy agitating for the International Criminal Court to exempt African presidents from prosecution. Politicians are busy looking for the next tax haven to hide their loot. The world is obsessed with trading on stock exchanges. The rest of us busy ourselves with living.

And all the while, evil becomes bolder and spreads. One day, it will come knocking at our door. One day, all the world’s 193 countries will be like Honduras where gangsters rule with barbaric violence, where children step over mutilated dead bodies on their way to school.

If we do not want to be like Honduras or other “Gangstercracies” of Central America, then evil must be confronted without mercy. The rapists of eastern Congo, as Dr Dennis Mukwege emphasised in his Nobel acceptance speech, must not be left free to spread evil.

The men who violated the 13-year-old girl with a stick must be apprehended and severely punished.

Is our justice system – investigators, prosecutors, judiciary – equipped to deal with evil? Kenya’s investigative arm needs more equipment, more modern technology, more trained personnel. The country needs more prosecutors with better pay.

But even if all of this were done, the judiciary, without changing its attitude, would still operate in contradiction to national aspirations.

The judiciary in Kenya, as many are pointing out, does not live up to the expectations of Kenyans. The judiciary seems to be developing a curious jurisprudence, one not in our interests.

When the rich are sought by police for alleged crimes, they rush to the judiciary and obtain “anticipatory bail.” They even get injunctions stopping any investigation into any alleged crimes.

How is it possible that a court can stop investigations into possible crimes? If we were all rich, then no one would ever get arrested and no one would ever be investigated for a crime.

Others – charged with murder or rape – are let out on bail, putting witnesses and evidence in jeopardy. Compare this with the case of former Nissan CEO Carlos Ghosn who is in custody in Japan. Japan, a democratic country with a human-rights culture, has developed jurisprudence in line with its aspirations. Here, the judiciary operates in abstraction, as if it were divorced from its own society.

Rape of even small children is becoming widespread and yet the way rape cases are handled –investigation, prosecution, sentencing – is almost as if the victim were on trial.

As we talk about constitutional changes, we must also look at how the judiciary and the entire criminal justice system can be better aligned with the expectations of Kenyans.

Tee Ngugi is a Nairobi-based political commentator.

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