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Friday, February 23, 2007

Maina Kiai Finds His Voice But Loses The Plot

Finally, the Chairman of the Kenya National Commission on Human Rights (KNCHR) has spoken out on the gunning down of Simon Matheri Ikeere and an "accomplice" by police, but I was kinda disappointed with what he had to say. I would have expected the top watchdog on human rights to raise the issue of the apparent violation of the suspects' rights and the danger unchecked police action poses to the enjoyment of these rights by others.

Instead, while declaring: "Police have a lot of lies. Why should we believe liars?", he seems to uncritically accept the police line (not subjected to review by any court) that the suspect was indeed the man behind the orgy of killing that has terrorized the capital for the last few weeks. The Nation quotes him as saying: "Tens of police officers where deployed just to kill Matheri and ignored the fact that the gangster would have given them information about who is behind his numerous missions (italics mine)."

He seems to be more concerned with helping the police pump information from suspects than with the protection of the suspects' rights. And why is that? In a blatant ploy to play politics with the crime wave, he continues (according to the Standard): "We want to speak with suspects. We want them to tell us their accomplices. Maybe it is a top politician." He also speculates that the killing of Matheri could be an attempt to cover up the real story.

I expected better.

As I have argued severally on this blog, the denial of the human rights of anyone (that includes those of persons we detest and fear) immediately endangers the same rights for the rest of wananchi. It is immaterial whether we think the suspect is guilty or innocent. When police are allowed to decide who is and isn't guilty, and who does and doesn't deserve to live, we effectively do away with the entire justice system and with the presumption of innocence that protects the rest of us from arbitrary arrests and execution.

That should have been the main concern of the man charged with looking out for our human rights. At the very least I would have expected him to call for an independent and public inquest into the circumstances surrounding the deaths of Matheri and his supposed accomplice. Kiai's "Gotcha!" mentality and approach sullies his otherwise excellent reputation at the KNCHR.

15 comments:

alexcia said...

It all begins by having an "army guy" head the police.
Result: Total incompetence to follow due process.
Impact: Extrajudicial killings and assasinations
Side impact: The guilty walk because of 'lack of evidence' or improperly collected 'evidence

Anonymous said...

OK, i can agree with your point of view on this . But i find your sense of justice somewhat contradictory especially after the long winded discussion that went on about the Githongo - on a different blog.

in that argument you erred on the side of the accuser more than the accused.

mwangi said...

Gathara, you are overreacting here. You are ignoring reality for the sake of an academic argument.

The law has no provision for executions but had he been caught by the residents of Gachie, the process would have been more painful, but the end the same, he is lucky in that respect. Where in the law is "mob justice" provided for? It is a socially sanctioned norm, one that not even laws can curb.Laws are but evolved norms in any case !!

Tujadiliane ndugu ...

Gathara said...

Alexcia,
Good point about the police being run by the army. The latter is not particularly famous for its adherence to the rules of civility.

Anon,
In the case of Githongo, I have no problem with allowing the accused the opportunity to defend themselves in open court. What I oppose is the attempt to deny the accusers their day in court. I would also defend the police's right to haul Matheri in front of a judge.

Mwangi,
You consider it an over-reaction to expect that the Chairman of the Kenya National Commission on Human Rights is more concerned with huma rights than with politics?

Some laws may be evolved norms, but that doesn't mean that all norms eventually evolve into laws. Throwing garbage in the street and urinating on fences are socially sanctioned norms that are unlikely to become law. Mob justice is illegal in Kenya. So is extra-judicial murder by the police and it is no justification to argue that a bullet is easier to take than stones from a mob.

mwangi said...

Gathara:

“Some laws may be evolved norms, but that doesn't mean that all norms eventually evolve into laws.”

I don’t know whether “throwing garbage” and “urinating” are socially sanctioned norms. For them to be considered norms there must be:

a) A critical mass of individuals who practice the norm
b) The attendant payoffs of following the norm must outweigh the costs – I am assuming that individuals are rational here …

As I have argued in response to your comment on my blog about gays, because you propose the government act in this case “to protect the minority” these actions would be artificial, and in direct opposition to the norm, hence the reaction from society a.k.a lynching. The fact that Matheri was essentially executed by the government just goes to corroborate my point. Government is also made up of people who are as bounded rationally as the rest of society. Matheri’s execution was necessary, perhaps even inevitable from this perspective.

Gathara said...

Mwangi,
(Warning: I have made essentially the same comment your blog, seeing as we seem to be debating the same issues)
The preamble to the US Constitution states in part that: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...That to secure these rights, Governments are instituted among Men.

Democratic governments exist, at least in part, to secure the rights of the governed. These "rights", being God-given and inalienable, are not subject to societal whims or norms -the tyranny of the majority to which you refer.

Norms within society can exist absent a government. However, they could not be enforced since governments are the agents of the collective will. And that is the difference between norms and laws. While the former suggest a voluntary acquiescence, compliance with the latter is mandatory. Norms may evolve into laws and vice versa (consider the case of the "queueing law" in Britain: if memory serves right, there was a call to remove the law from the books as the practice had now become an accepted social norm). A government though always deals in laws.

In the case of mob-or-police justice, the government is duty-bound to protect the victims' rights, at the expense of the societal norm if necessary.

mwangi said...

Gathara:
Which is the chicken, which is the egg? The government or laws? Can we have laws w/thout governments?

Gathara said...

It would be nonsensical to have laws without an enforcement mechanism (i.e. government) just as it would be nonsensical to have a government without any laws for it to enforce. The two go together.

That said, I guess one could argue that laws spring up from a societal need and the government is afterwards created as the agency of enforcement. But it could be equally true that a government could as well come out of a need to for collective action and would then enact laws to further this objective.

However, since everything begins with the human being and the human society, I would personally lean towards the latter scenario, since governments are made up of humans.

Anonymous said...

You should give the head of the Kenya National Commission a break - he seems to be damned if he doesn't and damned if he does! He was attacked for not supporting the killing and now you criticise him for playing down the human rights issues.

While I agree that the killing was a blatant violation of human rights, what use will this argument do if the majority of the public are cheering the execution? In this case it is not only the actions of the police that are the problem, but also that they have public opinion on their side. So, how can you convince people that this is not the right way to go about things? That everyone is innocent until proven guilty? that criminals aren’t inherently evil people who deserve to die? How do you make a case for human rights?

I am afraid I don't have the answer!

mwangi said...

Gathara:

In the traditional set-up, ie before the Europeans brought the idea of "statehood" and "government" ... the Kikuyu for example, had a decentralised system whereby the family was the singlemost important unit. There was no government. But there were laws or should i say codes of conduct which individuals were expected to abide by ...
Doesn't this pose a problem for your scenario?

Gathara said...

Anon,
Human rights are not the result of a majority vote. They are in born or God-given. It therefore shouldn't matter whether or not the public supports the police action. It is the job of the KNCHR to disabuse them of the notion that we can achieve security through the violation of these basic rights. It is also why Kiai has a job in the first place.

Mwangi,
The difficulty would only arise if we confuse the government for the nation-state. The Kikuyu may not have had the latter, but they surely had government. Remember the council of elders? They formed the government. And they had the power to enforce their decrees.

Anonymous said...

Ok, firstly I don't believe that human rights are natural, or god given, but we can leave that discussion for another time. I do, however, believe in human rights.

But what I was trying to get at is how to prioritise - is it the human rights themselves, as they are codified in various treaties, as written law, that should be primary? Or is it the result that human rights are attempting to achieve, i.e a just and equitable society?

I would say that, at times, we have to be strategic and use arguements that will hit home, rather than using rights speak that will be met with aggresive refutations, thus defeating the purpose.

Sorry for being anonymous - will get round to registering, or whatever you have to do, someday soon...

Gathara said...

Anon,
I do not buy the dichotomy you are selling. This is not a choice between rights and security. It is through the protection of human rights that the just society is achieved. They are not an expendable part of the equation.

I agree that many NGOs have done HR a disservice by an emphasis on their immutability without a corresponding emphasis on the role they play in securing justice, security and prosperity for all.

The perception that human rights are standing in the way of achieving lasting security is one that has to be fought tooth and nail.

Anonymous said...

No, no - I do not mean that human rights are expendable. Not at all! And without human rights we will not achieve a just society. I just meant that sometimes there could be a point in casing human rights in different terminology. But maybe not, maybe we just have to face the risks involved and uphold human rights no matter what.

S**t. I'm obviously no good at this...

Gathara said...

Anon,
I agree that the terms of the discourse have to change. The emphasis has to be on the role that HR play in the achievement of a prosperous, just and equitable society. NGOspeak rarely takes cognisance of the fact that the "men of action" rarely listen to namby-pamby arguments unless these can be tied directly to the achievement of their necessarily more concrete and limited goals.