Try options to decongest courts

November, I fear, might be my month of suffering: Lamentations, gnashing of teeth, a private valley of iniquity, character development on steroids.

But, let me give it some background.

Our society is like a pawpaw which is rotting from the inside. From the outside, it is all yellow and glorious. It is only when the black ooze of putrefaction leaks out that we begin to see the horrors inside. 

Corruption and weaknesses in the enforcement of law has created a situation where even the Moi state was far more efficient and better governed than our country today. Correct me if I am wrong but Mr Moi never disobeyed court orders; he just ensured that they were not made in the first place. Not a good thing, but he could wave his rungu around with the air of a man who stayed within the law.

I think in those days records and government documents were respected because you never knew what they would do to you if you touched them. Today, we need to start talking about land security and property security just as we talk about land rights and the right to own property. 

The shocking truth is that the government cannot guarantee your right to property, especially land. You lose your land in two ways. One, public officials collude with criminals to falsify records and dispossess law-abiding citizens. They do this with the most arrogant and insouciant impunity. Or they mobilise gangs of “squatters” and “landless” or “owners” to occupy the property and, with the collusion of law enforcement, evict the lawful owner.

Take a stand

I have seen a police officer resist enforcement of a court order addressed to him and a lower court vary the orders of a superior court. In land matters, the ordinary laws of right and wrong break down like the decay of the laws of physics in the quantum realm.

I have been faithfully going to court since 2019, determined to ensure the enforcement of my property rights but also, through my own suffering, to catalyse a revolution of property owners to demand the protection of their rights. So I spent a good part of the morning in an incredibly crowded Magistrate’s Court, being shouted at by a lawyer and accused of the most egregious crimes and malfeasance. 

In my eyes, I have the right to own a plot that I have paid for with my own money, however small, miserable and insignificant two acres is, and I have a duty to refuse to be bullied out of it by another man, even if he is a vicious, armed, dangerous and well-connected tycoon. 

And I want to encourage my neighbours and all those who have had a similar experience to take a stand and, together, let us make enough trouble to get back our property. Don’t just whisper to me in court; file a complaint and show up in court.

Appearing in a Magistrate’s Court with no cameras and no battery of lawyers and where most of those in attendance are ordinary country folk is not just a humbling experience; it also shows you how the judicial system in the country works. The Judiciary is drowning under an avalanche of petty offences: Chicken thieves, small-time poachers, drunkards, family outcasts and spouse beaters. 

Conventional courts

After going through a day of mentioning and assigning cases, you will find that the magistrate will only have come across two or three offences such as robbery. The rest are small-fry crooks who, unfortunately, fill the remand system because they will be held awaiting trial, which takes years, for want of Sh10,000 bail.

I saw villagers get on the dock and raise their hands. The magistrate asked them, rather kindly, why they were raising their hands. A man was asked to take plea and he said he could not because he had asked his father for forgiveness. The magistrate called the father and asked him: “Why have you brought this man here?” The father said his son had not confessed his wrongdoing and he was, therefore, going to press charges. He was remanded.

I thought the magistrate conducted the proceedings with quiet dignity and firm authority. But there were no lofty points of law argued; just a long march through the dock of a veritable army of small fry. And maybe one or two serious crooks.

I think the Judiciary should be freed of issues which can be solved by elders and alternative methods of justice. Our African law still exists, although we only apply it to marriage and, sometimes, succession. 

I like pointing out that we disobey traffic and other laws but go out of our way to enforce our parents’ wills and fulfill arcane marriage customs. Traditional courts should be formalised to deal with family disputes and free the conventional courts to handle more complex matters.

So, with haters defaming me in the yellow press, liars dragging me through the mud and a massing of the ranks of enemies, November appears to be like the type of month that calls for fortitude, fervent prayer and a staunchily resistant heart. Amen?

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