Thursday, November 12, 2009

I wonder why the government and the people in general always view prisons as a form of Justice. To them, the only way of executing the decisions of the court is through either fines (for minor offences) and through imprisonment. This is a very erroneous way of thinking.
Unfortunately, it has been put in the mind set of Kenyans and Africans in general (by the colonialists, of course) that imprisonment is actually justice and nearly everyone is satisfied by that “fact.” Basically, both the victim and the wrong doer get a psychological sense of justice, even the judge and everyone in the process get the sense of justice, psychological.  This thence brings in some psychological satisfaction, rather than justice itself.
If I steal kshs5000 from you today and there is proof that I stole the cash. Then for some reason I don’t have the money (either I have spent it, or I am just refusing with it). Then you report to the authorities, and they finally prosecute me and they imprison me for say one year, how will that help you? You will still be kshs5000 poorer!  Furthermore, if you get the satisfaction that I won’t be stealing from you the following day, then, if I want, I will still steal from you the following year!
If someone chops your hand off, kills your son, defiles your daughter, or orders the annihilation of a whole tribe or race, how will the imprisonment of this fellow bring justice? Will it bring your hand back? Will it resurrect your son? Will it undefile your daughter? Will it bring the tribe back? Of course the answer to all the above is negative. But is the imprisonment of the fellow any justice? The answer again is no.
If I take a man I consider as one of Kenya’s greatest criminal, former president Moi. The guy stole large tracks of land, the guy incarcerated hundreds of innocent Kenyans, under his watch, many political prisoners were killed, he was one man who ran down the economy of Kenya, he sponsored ethnic cleansing which haunt the country to this day, he institutionalized corruption, and probably did more evil outside the public eye. Taking him to prison will not bring back what he stole, the lives he took etc. in any case the mzee is already on surplus years.
Real Justice should have three results;

  1. 1.       It should executed in a manner that will prevent the criminal from committing the same or any other crime in the future
  2. 2.       It should be done in a way that the victim will benefit (this is where possible, especially in thievery, defamation, damage to property, and such )
  3. 3.       It should be implemented in a fashion that any criminal and would be criminal would seriously reconsider their ways

For instance, after I steal you kshs5000, instead of being imprisoned, I should be made to repay you money, plus some damages. I should also be made to foot the cost of the whole trial. The cost of the damages should be calculated in a manner that will firstly benefit the victim big time, and secondly, such that I, the thief will feel the pinch.
Say I earn kshs20 000 per month, I could be made to pay my victim say kshs10 000 in the first salary I get, then pay kshs7 000 I the next month, and finally give to the courts 10 000 of my third salary.
In the occasion that I am not earning, then the state should look for some job for me. I should be employed under custody. There are those jobs, like Quarry work, or construction work that are always in abundance, and require none, or just one day experience (and a tough supervisor!).
Or better still, in order to make me marketable, the state can look for someone on whose farm I can work, and pay me half the market rates. Then I would work in my field till I repay the kshs5000 that I had stolen, and probably an extra of kshs5000, plus another kshs2000 for the courts.
At the same time, reform should be preached to the fellow, so that they may understand that they are not being punished, but only that justice is being administered. They should be made to see the light and do what is right.
For the fellow who defiles, kills, life imprisonment won’t be enough, there is no point for life to a person who ends it (by the way, here I am talking of murder, not inadvertent killing). But also ending the person’s life is not good enough.
The fellow should be subjected to short, sharp, shocks that will ensure that the fellow won’t die, but endure extreme pain. This will ensure some kind of pain, before eventually executing the fellow. Otherwise if the fellow is just summarily executed, it would just cancel out, no justice. His death must be slower and more painful than that of his victim. This pain should be intermittent (to avoid the fellow getting used to, and then immune to It.) it should also be both physical and psychological.
The above action should be done in an establishment whose name would suggest punishment (not correction), e.g. the punishary
For the likes of Moi, he should be taken to the punishary, but before that, whatever would be remaining of his thievery should be reposed, together with what it had earned over the years, that is, if he had stolen some chunk of land and used the profits from that land to invest in the transport industry, then that transport business of his should also be repossessed.
Lastly, in my strongest opinion, an eye for an eye is no justice. An ear for an ear is no justice at all. This is because the maimer was not justified to pluck off the victim’s eye in the first place.
To me, justice is an eye for two eyes, an ear for a pair and a ball for two balls.

All in all, the above becomes justice when it is JUSTICE. In Kenya, we have people who go to jail because the judge was bribed, we have those who go to prison because they didn’t have qualified legal representation, we have those who suffer because of shoddy, unscrupulous and/or malicious investigations, we have those who are incarcerated for political, racial, religious and such other reasons.
Until that day that the above will come to an end, then it will be impossible to get real justice in Kenya.

Benedict Wachira mamLuki
Friday 6th November 2009

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