(I am not sure it is legal for me to tell this story. Everyone in my court room was asked to leave when the matter came up for hearing, but since I was on clinical attachment, I was spared. So if you know you have a magistrate/judge drinking buddy, kindly don’t post this on your timeline. I might get six months or more in jail for leaking confidential court proceedings.)
In the heart of Kilimani suburbs, a story is untold of one James Kamau (not his real name) who in the wake of last Christmas celebration got a visit from some people not exactly in the Santa legion. Five thugs, dressed in the administration police uniform, staged a coup d’état in his home where he was hosting his mother from upstate, his fiancé and his sister-in-law to be. I am not sure calling them ‘criminals’ really quite cuts it. Because they will have to be humans first, but they don’t qualify. Anyways, the raid lasted five hours long, during which time, the hoodlums took their time and turns at raping the host’s female visitors, beat him up to a point shy of death and then shot his mother. They later made away with their handsets, laptops and Subaru just for good measure.
Later that night, he managed to report this to the Kilimani Police Station, and wrote a statement. However, his harrowing ordeal still remains untold, and nobody seems to care, because well, news headlines are still awash with both arrogant and ignorant political cognoscenti engaged in a battle of David and Goliath for gubernatorial seats. All the while social media pundits who are at least supposed to give one single damn are unfortunately held up on their timelines, spewing political righteousness back and forth.
So whilst the rest of the world lit candles on Christmas to celebrate the birthday of Jesus, he was at the wake of his mother. And on the midnight of 31st, he kissed his violated soon-to-be wife hoping for better luck in 2013 as custom requires. That maybe the perpetrators of these heinous crimes would spend a significant part of the rest of their lives behind steel bars. He hopes that his good luck will come in the conviction of the five suspects who were nabbed soon after the sorry incident. But sadly, we live in a beautiful country, in which ugly souls push the buttons.
Justice here has a price tag, and the persons who denied his mother the chance to see him raise his grandchildren, might as well walk freely into the sunset. Simply because he failed to distinctly identify the people on the dock in his statement at the police station. And in the eyes of the law, failure to correctly identify a suspect in a statement raises doubt. And it is that little bit of doubt that sets a criminal free. Thus the police prosecutor cannot dispense requisite standard of proof beyond any reasonable doubt.
Justice requires prudence. And a magistrate would rather acquit one hundred guilty persons than convict one innocent person. That is why the law is one big ass. It is not what you know, but you can prove in court.
‘This is a court of record; and it is only what can be proved that is admissible. I may decide to throw the book at these five individuals, but on appeal to the High Court, the honorable justice(s) may decide otherwise,’ says the presiding magistrate at Milimani Law Courts in Nairobi.
While it is ridiculous for any reasonable person to expect a man who has just witnessed the rape and murder of his fiancé and mother, to write a full-proof and comprehensive police statement of the incident, barely an hour after the fact, the law will stick to its guns and demand evidence afar any judicious reservation. Of course this provision was instituted to protect the rule of law- that every person charged with a criminal offence should be deemed innocent until proven guilty. That is all good, but what about James Kamau and any other people like him? What about those who were too traumatized to write a statement that does not explicitly identify the person who pulled a trigger on his mother’s head in cold blood? What remedy is available to them?
Get this, ladies and gentlemen. I am a student of law in the leading public university in Kenya, and after three years in this discipline, I can tell you for free that James’ assailants do not even need a good criminal litigant for them to walk free into the moonlight. All they need is a copy of the Evidence Act (Cap 80 Laws of Kenya) and a head on top of their shoulders.
Take note that our Kenyan criminal law requires that where an accused person is charged with an offence attracting the death penalty (i.e. murder, robbery with violence and/or treason) the prosecution should not add additional charges, because it would be prejudicial to the accused. That is why the charge sheet against James’ assailants were not charged with rape. Simply robbery with violence aggravated by murder. Do you find anything wrong with this? Why can’t I hear any uproar? These wild animals have a good chance of walking away with murder, and since you cannot arrest them again and charge them with rape without adducing additional evidence, then these guys are going to get away with everything!
The last time criminal statistics in Kenya were posted in the Kenya Police website was in 2010. And then, according the site, the rate of criminal against persons (e.g. murder, robbery with violence, rape) reduced by 7% with Nairobi shamelessly taking the lead. That was three years ago. One would expect the figures to be much lower now if the statements by Eric Kiraithe (Kenya Police spokesman) are anything to go by. But every time a case like James’ comes up, we are left to wonder whether our walls are high enough or when was the last time we changed our locks…or both.
Worse still, when we hear that a platoon of forty police officers is slaughtered in action, and one of them was a charlatan, we can’t possibly do more than hope that the new reforms in the police force will hold any water.
The saddest part about all this is that this trend of blatant disregard for the sanctity of human life will go on for as long as our television cameras remain focused on the latest politician to jump ship from party X to party Y; instead of our law enforcement institutions.
In the meantime, I haven’t seen James’ face on the 9 o’clock news or his story making headlines. And that it only means that his mother and fiancé will remain a statistic. A part of the 93 % that were left behind enemy lines.
James Kamau will never know justice, and his story will never be told. And that is why I chose to tell it; to remind you that we are still far away from change. However much our beloved politicians might want us to smell the non-existent intoxicating aroma of change. The world, and more precisely the country we live in, is made up of good guys and bad guys and very little in between. It is a puzzle that only fools accept at face value.
And the law is always there to justify every bug that chews up our social fabric. It is an ass (not as in your bum); as in stupid. It is an idiot that cannot realize just how much the murder of James’ mother, the rape of his fiancé and his fiancé’s sister diminishes and impoverishes us all. It is a simpleton that cannot decipher the horror of having armored, trigger happy animals running our town, any more than most of us can decipher hieroglyphics.
Again I say; the law is an ass, not as in your hind quarters, rather as in stupid. Be smart folks. Wake up and smell the coffee, will you?