Donald Kipkorir
15 August 2008
Nairobi — School holidays seem to have halted the burning of dormitories, laboratories and other property by students.
The damage, according to media reports, runs into millions of shillings. But the value is normally given by the school authorities on the day of the burning, making one question their accuracy and veracity.
Jomo Kenyatta University of Science and Technology was the first tertiary institution to close after the cessation.
As always, there are a number of ministerial and parliamentary committees trying to find out why our schools are burning, and are expected to offer recommendations to avoid a recurrence. Either the authorities suffer from the worst case of amnesia or the probe teams are only a means of stealing public money.
Amid the burnings, the school closures and the investigations, there are calls that students in the affected schools be surcharged to pay for the damage. JKUAT has actually run advertisements in the media recalling its students, but each is required to pay Sh3,500 as a condition for readmission.
And there is the rub. To ask students to pay a flat sum to recompense the affected schools goes to the very root of our judicial and societal systems.
Kenya's legal system is underpinned substantially in the English law and, to a very little extent, the African customary one. But the English law is based on that of ancient Roman, which over time was refined by the English and ameliorated by Christian theology, as set out in the Bible.
The root of our legal system, therefore, lies in the Bible. In ancient Israel and before Prophet Jeremiah's time, punishment and reward were collective.
God, whom Christians and Jews worship, punished nations as a whole for either violating his laws or transgressing against the people of Israel. For instance, the people of Egypt, Philistia, Midian and Shechem were destroyed by war, pestilence and epidemics for standing up to God.
Prophet Jeremiah lived in the 7th and 6th Centuries BC when Israel was transitioning from being under the Assyrian Empire, which was on its way down, as Babylon Empire gained ascendancy. It was at this time that Israelis were taken into Babylonian captivity.
As Israelis were undergoing this torment, God turned on its head his teachings on punishment and reward. From then on, he said, he was instituting a new covenant in which individuals would suffer for their own sins and be rewarded for their faith. Herein lies the foundation of the Christian faith and the legal systems it spawned.
In Kenya's civil and criminal laws, liability and culpability are individual, never collective. In civil law, one who is injured or wronged must discharge the burden of proof to receive compensation or payment from the defendant.
The law places the burden on the claimant, which he discharges only when he establishes a prima facie case against the wrong-doer. Liability cannot arise if this burden is not discharged.
Our law says that he who alleges must prove. In criminal law, the burden on the prosecution is higher. The attorney-general or officers given prosecutorial powers must prove beyond reasonable doubt the accused's guilt.
If there is doubt -- even the slightest on the accused's guilt, the courts have no choice but to acquit him or her. The Kenyan media are awash with reports of cases in which killers and rapists are set free by the courts on this score.
O.J. Simpson, the famous American actor and footballer, was charged with the murder of his wife and her lover, and the evidence was overwhelming.
He was, however, acquitted mainly because the glove the prosecution alleged he wore during the alleged killings could not fit him when the court asked him to try it on. Johnnie Cochran, his legendary lawyer, summed up to the jury: "If it ain't fit, you must acquit." And the jury did just that.
If, therefore, our legal system that is embedded in the Christian faith, English law and African traditions, demands individual responsibility, where do we get authority to compel students of the affected institutions to make a collective equal payment for them to be readmitted?
In exacting collective responsibility in thousands of students when only hundreds were responsible for the riots and arson, we plant seeds of disrespect for the law and its institutional structures.
When we see politicians, police and the general public show disrespect for the law with impunity, we wonder why probe committees are necessary. And yet we have inculcated in the minds of students and the general public that one will be punished for others' sins.
If we cannot allocate responsibility and liability on guilty people why do we complain when our institutions fail to function?
Unless we move away from collective to individual responsibility, and until Kenyans stand up against such illegal surcharges, we will always see recurrences of riots, tribal clashes, election cheating and political rot.
Education minister Sam Ongeri, AG Amos Wako and the media are watching as a substratum of our judicial system is undermined. Who will save us?
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