By Wachira Maina
NAIROBI — On August 12, 1897, English law came to Kenya. A century later, should we celebrate or mourn? We suggest that Kenyans should reflect on the meaning of English law and of colonialism to Kenya as the 20th century comes to an end. Most of us do not know how colonial law spawned the current political crisis. There are lessons to be learned as the struggle for constitutional reforms takes centre stage.
The colonial state was an imposition, a conquest state. Because of this congenital defect, the state was seen as illegitimate by Kenyans. The British resorted to force, in combination with fraud, deception and harsh laws.
A recent book records 27 military expeditions against Kenyans between 1895 and 1911. In 1904 and 1911, the Maasai were duped into signing away their land to the British. Pursuant to these "agreements", 11,000 Maasai and 11 million livestock were moved to make room for 48 settlers.
The Maasai then went to court, where further chicanery awaited them. In throwing out the case, the court called the agreements "treaties" between two sovereigns — the Maasai Laibon and the British crown. Treaties were a matter of international, not domestic, law. Therefore the court had no jurisdiction.
To this fraud and violence was added legal repression. The law was used to create a racially segregated society. Settlers lived by formal law enjoying the liberties of "free Englishmen". Africans answered to a rigid system of decentralised dictatorship manned by an autocratic prefecture of provincial and district commissioners, divisional officers, chiefs, sub-chiefs and headmen.
Force was necessary because the English believed Africans were recalcitrant, lazy and in need of some toilet training. Official violence was also part of the effort to generate cheap labour for the settler plantocracy. Taxes payable in cash forced Africans into waged employment.
The elimination of these repressive colonial laws, through which Daniel arap Moi continues to rule, is the core of the Kenyan democracy movement's demands.
To ensure African labour did not abscond, the Registration of Natives Ordinance (today called the Registration and Identification of Persons Act) was enacted. Every time an African left employment, the employer had to sign the worker's kipande as evidence that the African was not a labour deserter.
This kipande had to be carried in a tin container around the neck, and one had to produce it on demand from police or the administration. The Kenya police's routine question, "Wapi kitambulisho" (Where is your ID?) remains the most terrifying colonial relic.
More laws to regulate African labour followed. The better known of these were the Masters and Servants Ordinance (today the Masters and Servants Act) and the Vagrancy Regulations (now called the Vagrancy Act). The Vagrancy Regulations criminalised begging and homelessness.
These were put to good use during the independence struggle. Hundreds of unemployed Africans were hounded into jail for failing to prove that they had a dwelling place.
This sorry tale persists. Go to any magistrates court today. Chances are that the bulk of those in the dock will be "spivs and vagabonds", which is merely a nastier way of saying that they are homeless and jobless.
To give chiefs power to mobilise African labour, a series of Native Administration Ordinances (now better known as the Chief's Authority Act) were enacted. These gave chiefs power to prohibit excessive dancing, restrict native liquor and order people into public works programs.
Why? African labourers were believed lazy and prone to drink. Again, not much has changed. Chiefs have the same powers to prohibit dancing, outlaw local brews and compel labour for public works.
In colonial times, whenever Africans went into open competition or conflict with the settlers, the law was changed to give more power to the administration and less freedom to the Africans. Laws like the Outlying Districts Ordinance (now the Outlying Districts Act) and the Special Districts Administration Ordinance (today the Special Districts Administration Act) were designed for political as well as economic control.
By giving the district commissioners powers to restrict the movements of persons, these laws ensured whites were kept off tribal areas. But they also confined Africans likely to ship their stock to cattle auctions to compete with settler ranchers.
To safeguard settler stock from theft, the Stock Theft Ordinance (now called the Stock and Produce Theft Act) was enacted. This law imposed collective punishment on any community suspected of harbouring stock thieves. This remains the law. It violates the principle that criminal liability is personal, not collective.
In the 1930s, debts arising out of the depression threatened to cripple the settlers. A slew of agricultural laws including the Agricultural Ordinance (now the Agriculture Act) were enacted.
A different set of rules were applied to Africans. African produce was to be marketed via the Marketing of African Produce Rules. These rules are still part of our agricultural laws, now called the Agricultural Marketing (African Produce) Rules. Rule 5 of the present Crop Production and Livestock (African Produce) Rules still prohibits "any movement of African produce (legumes, sorghum, millet) unless it is contained in sound well-sewn bags which bear a clear mark, at least 2 inches in size, indicating the name of the businessman who first bought them from an African".
The Mau Mau uprising in the 1950s led the British to impose a new array of draconian laws. Prominent among these were laws prohibiting unlawful oaths, driven by the irrational terror the settlers had of the Mau Mau oath. To check the spread of Mau Mau, the Emergency Powers Order in Council (now the Preservation of Public Security Act) was enacted. Curfews and restrictive orders were authorised by the Public Order Ordinance (now the Public Order Act).
This laundry list of bad laws is only the tip of the colonial iceberg. The point here is that independence changed little of the colonial legal legacy. Independence left colonialism's laws intact.
While official racism was ruptured, democracy did not come. Therein lies the key to our political crisis. The Kenyatta administration, and Moi's after his, used the same laws as the colonial state.
In 1975, President Kenyatta's friend, Paul Ngei, lost his parliamentary seat for committing an election offence. At the time, the presidential prerogative of mercy did not cover election offences. To prevent a five-year stretch in political limbo for Ngei, Kenyatta forced a precipitous change to the constitution to give him powers of pardon.
The drama of this story shames novelist John Grisham. The amendment bill was published on December 9. It was tabled on December 10. It passed all the three stages of debate that afternoon. On December 11, it received presidential assent and was immediately backdated to January 1, 1975!
Confronted by a stubborn judiciary and problems from the left-wing Mwakenya movement between 1986 and 1988, President Moi kept faith with the Kenyatta legacy. Moi's Kenya African National Union engineered a "Ngei-like" constitutional amendment. In one afternoon, judges were stripped of their job security, henceforth to hold office as the president pleased.
As a result, independent Kenya, like its colonial forerunner, has evolved as a "low trust" institution — distrusted and distrustful. It thinks that NGOs are infant political parties and agents of foreigners; hence the NGO Co-ordination Act. Subversion looms large in its mind.
People have more faith in family groups, age-sets and clans. Clanism and tribalism are rational responses to an irrational state. Rather than lament on the ethnic nature of Kenyans, political reformers should discuss ways of making the state more trustworthy and trusting.
That the Kenyan state should be in this parlous condition a generation after independence is a national scandal. This underlines what is really at issue in current reform efforts.
Constitutional reform entails more than the mere recycling of one set of political entrepreneurs with another. Unless we focus on the meaning of this legacy, Kenya could become the island of chaos in a sea of peace.
{Wachira Maina is a constitutional lawyer. This article first appeared in the August 17 issue of the Nairobi-based Nation newspaper.}