We have yet to address the Kriegler Report’s devastating conclusion that we are a culture of impunity. Now, I must confess that I was throwing around the word impunity for at least two months without understanding what it meant. I imagined that it said something very true that was specific to the political class. When I finally looked up the meaning in the Oxford English Dictionary, this is what I discovered: “Exemption from punishment or penalty.”
What has happened in the wake of the Kriegler Report is a too-familiar and distressing occurrence: we have ignored our implication in impunity and, having misread or, in many cases, not read the Report at all, have concluded that impunity is a disease that infects the political class.
Impunity is a Kenyan problem that is not restricted to the political class.
To be slightly more academic: impunity is a historically-developed form of social negotiation that structures everyday Kenyan life. We need not look far to diagnose how and why we adopted impunity as an everyday practice. Two ready answers present themselves as we look back over the past 30 years: political repression and corruption. Certainly, these are not the only reasons we embrace impunity, but focusing on them may illuminate how we came to value and practice impunity.
As books like Ngugi wa Thiong’o’s Detained (1981) and Maina wa Kinyatti’s Kenya: A Prison Notebook (1996) make clear, unwarranted arrests and prolonged detention have long been a feature of Kenya’s political history. Closer to the streets, the stories of police harassing pedestrians in Nairobi are legion. In a politically repressive Kenya, unwarranted arrests blur the line between the legal and the illegal, making it difficult for us to define and understand culpability.
Put otherwise: when one can be arrested for owning books that mention Marx, an act that is supported nowhere in any of our official legal documents, or, when one can be arrested for teaching seditious literatures, literatures that critique the government, then it becomes difficult to understand what is legal and what is illegal.
How does one follow the law when it is subject to the whims of a paranoid Executive and paralyzed Judiciary?
As a legacy of those repressive Moi years, and what might be the equally repressive Kibaki-Raila years, the Kenyan anthem has become Shaggy’s infamous “it wasn’t me.” Whatever it is, “it wasn’t me.”
We have a difficult time taking responsibility for wrongdoing precisely because “wrongdoing” is often an arbitrary and capricious category. It is so capricious that Kenyan motorists always ask, “what did I do wrong?” not to escape punishment, but because their crimes seem to correspond to specific periods around payday.
The law is administered arbitrarily.
If, on the one hand, we never quite know what laws we are breaking, either because they are not on the books or because they are administered arbitrarily, on the other hand, we know that the law is for sale. We sit in matatus and private cars and watch our drivers, parents, relatives, and friends pay for a get out of jail free card.
We know that Kenyan justice is often an economic proposition, and those with clout and chutzpah can talk and pay their way out of most anything. Now, none of what I’ve written so far is new or surprising. It’s old ground.
However, I want to offer the provocative speculation that while our official documents, like the Kriegler Report, might condemn impunity, and while our leaders and media often join in the chorus of condemnation, we all benefit so much from impunity that we strive to support it. Much like the roast maize that we devour so hungrily, impunity is an essential part of our national diet. And we are lost without it.
And so we are stuck in a classic catch-22. On the one hand, we know that we cannot delay justice, that an unjust Kenya is a failed Kenya, and that those who suffer among us and those who have died deserve justice. We know this and believe it fervently. Simultaneously, impunity is so deeply embedded in our national psyche, and is so supported by the national Christian ethic that urges us to forgive and forget, that we find it impossible to punish anyone, especially those figures who, like Kamlesh Pattni, tell us they have confessed their sins and found Christian salvation.
When we hear such confessions, we forget that Kenya is not a theocratic State, no matter what some of our citizens and preachers might believe, and that the rule of law that constitutes us as a State is not subordinate to the dictates and practices of Christian redemption, no matter how fervently expressed.
In fact, and here’s the rub, when we practice forgive and forget as a national strategy of reconciliation, and when those who are guilty neither acknowledg their guilt nor own up to their crimes, we license and endorse impunity.
Practically, all this means we have a culture where no one is ever responsible for anything, where not only is there no accountability, but it is impossible for there to be accountability. Impunity forecloses, makes impossible, the possibility for justice, responsibility, accountability, those words we like to use when we describe the Kenya we want.
A culture of impunity.
As the Marxist critic Raymond Williams explains, the term “culture” originally referred to agricultural practices. Culture is something that is cultivated, that is nourished and grows. It is not something that can be uprooted easily.
Impunity is an insidious weed that permeates Kenya. We hack away at it, but small portions remain in the ground, stubbornly, and given the slightest bit of nutrition, say from the crocodile tears of our political class, grow from strength to strength.
Uprooting impunity will require a lot of labor.
We need to know that all branches of government support the rule of law and will defend our rights and freedoms. The Legislative cannot enact laws to punish wananchi or muzzle critics. The Executive must always consider that the laws should serve the wananchi, and institutions such as the police must strive to practice their motto, “Utumishi kwa Wote.” Our Judiciary must be independent and, as far as possible, incorruptible.
As citizens, we also have a responsibility. We have a responsibility to know the laws that govern us, to lobby our parliamentary representatives when they enact unfair or arbitrary laws, and to own up to our wrongdoing. Now, I’m not naïve enough to believe that “Kenya’s Most Wanted” will report to Central Police Station tomorrow. However, I do believe, I must believe, that we want what’s best for Kenya.
On the road to the better Kenya we want, we will have to shed our status as wananchi, children of the nation who look to our leaders to feed, clothe, govern, and forgive us, and take up our responsibilities as wenye-nchi, ready to face the challenges of responsibility and accountability. We will have to give up the easy pleasures and convenience of impunity and live with and within the laws that constitute us and sustain us as a State.
This is tough work. But if kazi iendelee is to be anything more than a campaign slogan, then we have to do the cultural work, the work of weeding impunity and cultivating legality, that will nourish the Kenya we want to inhabit.