On Kenya's Penal Code

notes and mutterings

Increasingly, I believe that the greatest betrayal in the drafting of the 2010 Constitution was not repealing the entire Penal Code. Repealing it would have signaled that Kenya had decided to craft a legal system that was anticolonial, if only symbolically.¹

Here are a few notes about the Penal Code, and why it is so pernicious.²

i.

Apart from bureaucratic stuff—getting birth certificates, national identity cards, marriage licenses, and death certificates—most people in Kenya experience the law in contact with the police, and are most often charged with violating sections of the Penal Code. The Penal Code governs not only what count as offences, but also a general way that the police think and act.

The Penal Code’s basic essence is that the African is a criminal who needs to be managed carefully.

ii.

I find the correspondence below a useful starting point.

Correspondence Excerpts:

Mr. Ainsworth to Mr. A. Hardinge

Ukamba Province
Machakos
February 29, 1896

Sir,

I have the honour to acknowledge receipt of a general Circular giving information of the enlargement of the civil jail in Mombasa, and containing instructions to forward to Mombasa prisoners sentenced to a period of six months and over.

. . .

I should be glad to be informed as to the maximum term of imprisonment that we are empowered to sentence prisoners to, and are there any classes of crime, such as murder, slave-dealing by Swahilis, etc., which we would not be empowered to deal with.

And further, when a case would be met by flogging I should be glad to have definite instructions as to what should be considered the maximum number of “Kiboko” (lashes) to be administered.

. . .

(signed) JOHN AINSWORTH
Her Majesty’s Sub-Commissioner

Mr. A. Hardinge to Mr. Ainsworth

Mombasa
March 20, 1896

Sir, I have had under my consideration your despatch of the 29^th ultimo respecting the punishments to be awarded to native offenders and convicts in your province and I have now to give the following replies to the questions which you submit to me:—

I would premiss by saying that, save in the exceptional cases of political offenders whom you may consider it expedient to deport beyond the limits of the province, no convicts whose sentence does not include hard labour, or whose sentence is less than one year should, in the present defective state of communication, be sent to the Mombasa central gaol.

. . .

The questions as to the limits of your jurisdiction over natives is a somewhat more difficult one, and my instructions to you on the subject should be regarded by you as provisional and not as final, until I am able to inform you that they are approved by the Secretary of State.

As a general rule, I am of opinion that, unless your intervention is invoked, or unless an offence of extreme gravity, such as murder or slave-dealing, for which native usage provides no adequate punishment, is brought to your notice, it will be adivsable for the present, outside the stations occupied by Europeans, and a radius of 5 miles around them, for you to leave offences committed by natives against one another to be dealt with according to native custom by their own recognized Headmen or Chiefs. Assaults and thefts are presumably the most common forms of crime, and the punishment which, I believe is inflicted among most East African tribes, i.e., the payment of more or less heavy fine in kind to the injured party, may, I think, under existing circumstances, by acquiesced in by you in such cases.

. . .

In any case in which an European or British Indian is concerned as a plaintiff (with European defendants you are not competent, nor is any one save myself and such officers as are furnished with special warrants under the African Order in Council, to deal) you should aways try the case yourself or have it tried by one of your district officers, and in trying it you should be guided by the general principles of the Indian Penal and Criminal Procedure Codes, copies of which will be sent to you by an early opportunity.

. . .

As regards flogging, the maximum penalty provided by the Indian Whipping Act is thirty lashes, and as general rule, where flogging is inflicted for a comparatively trivial offence, this number would, I think, be sufficient; but I am of opinion that in the case of African savages, whose physical power of enduring this description of pain is notoriously much greater than that of the more sensitive and civilized peoples of Europe and India, a maximum of 100 lashes should be allowed to be inflicted in grave cases, under the supervision of the Provincial Medical Officer.

. . .

I am, etc,

(signed) ARTHUR H. HARDINGE

This correspondence sets out a few basic premises of colonial-era law in Kenya: the law was used to distinguish between races, especially among the white colonizers, the Indian migrant workers, and the African natives (also referred to as “savages” in this correspondence). Please note that Africans are framed as “natives” in terms of colonial administration and as “savages” in terms of colonial punishment.

Second, the law was to create a colonial geography. Hardinge clarifies that the law should be applied within “European stations, and a radius of 5 miles around them.”

Natives were to be managed. Savages were to be punished. Africans were both native and savage. These are not synonyms. Native : Savage.

And, finally, there is no engagement with African approaches to injury and redress, crime and punishment. Hardinge proclaims, confidently, that “assault and theft” are probably the most common crimes commited by Africans against each other. That might be called a statement about “native character”: assault and theft. It does not come from nowhere. It comes from histories of slavery, where enslavers worried about theft and assault.

Kenya’s colonial-era Penal Code, enacted in 1930—I know I repeat myself—was guided by these types of discussions. To pass a law that would control and punish Africans without treating Europeans as though they were Africans.

iii.

If a cursory reading of India’s colonial-era 1860 Penal Code reveals that it was constructed in response to the 1857 Mutiny, then an equally cursory reading of Kenya’s 1930 Penal Code reveals that it was, similarly, constructed in response to Kenyan strivings for freedom.³ It aimed to restrict political dissent by criminalizing everyday life.

Let me offer a few examples.

Famed Giriama Freedom Fighter Mekatilili wa Mwanza was known to perform the kifudo dance, usually performed at funerals, and when crowds gathered, she would breathe life into freedom dreams and struggles.

In 1922, Mary Nyanjiru gathered alongside others to protest the unjust imprisonment of freedom fighter, Harry Thuku. At Nyanjiru’s urging, the men in the crowd rushed the prison, and were massacred by the colonial forces. Nyanjiru was one of the fallen.

Two women, gathering crowds to urge freedom.

94. (1) Any person who in a public place or at a public gathering uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned is guilty of an offence and is liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months or to both.

(2) In this section, “public gathering” means -

(a) any meeting, gathering or concourse of ten or more persons in any public place; or

(b) any meeting or gathering which the public or any section of the public or more than fifty persons are permitted to attend or do attend, whether on payment or otherwise; or

(c) any procession in, to or from a public place.

Under colonialism, law is whatever the people wielding power says it is. How is one to know?

7. Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.

Criminality is contagious, already part of character, already part of social position, already part of sociality, already embedded in collectivity:

20. (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence; and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.

The law wants to punish the highest number of people possible. It has no pedagogical mission.

7. Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.

African children cannot be children. They are criminals in training.

14. (1) A person under the age of eight years is not criminally responsible for any act or omission.

(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

Gatherings are always potentially criminal.

78. (1) When three or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.

(2) It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.

(3) When an unlawful assembly has begun to execute the purpose for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.

79. Any person who takes part in an unlawful assembly is guilty of a misdemeanour and is liable to imprisonment for one year.

80. Any person who takes part in a riot is guilty of a misdemeanour.

Two times, Mekatilili wa Mwanza escaped from the hold of colonial prisons.

23. Any person who, being in lawful custody, escapes from that custody is guilty of a misdemeanour.

Colonial law aims to make anything punishable.

175. (1) Any person who does an act not authorized by law or omits to discharge a legal duty and thereby causes any common injury, or danger or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights, commits the misdemeanour termed a common nuisance and is liable to imprisonment for one year.

(2) It is immaterial that the act or omission complained of is convenient to a larger number of the public than it inconveniences, but the fact that it facilitates the lawful exercise of their rights by a part of the public may show that it is not a nuisance to any of the public.

What is the public in a colonial situation? Is the public not simply a name for the white minority?

Relations of power are defined:

217. It is the duty of every person who as master or mistress has contracted to provide necessary food, clothing or lodging for any servant or apprentice under the age of sixteen years to provide the same; and he or she shall be deemed to have caused any consequences which adversely affect the life or health of the servant or apprentice by reason of any omission to perform that duty.

It might be true that the terms master and mistress denote labour relations, especially when used to describe the relation to an apprentice or servant, but these terms are subtended not only by a history of labour relations between white people but, more immediately, by the history of slavery that subtends European colonialism in Africa.

Intent is criminalized.

388. (1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

Criminality is contagious. No one can or should escape punishment.

396. (1) A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence.

iv.

A few summative thoughts.

If I were pursuing any kind of law-related degree, I would be more meticulous about tracking down when specific sections were inserted into the Penal Code. If possible, I would track down whatever hansard discussions were available. It is probably true that much of this was lifted from already existing codes in England, India, Jamaica, and elsewhere, but geohistory changes what is useful where.⁴

A few years ago, I had started drafting something for a project that did not happen for a range of reasons. In that drafting, I was trying to think through how the law imagines and unimagines personhood. The law, as I framed it, was not simply applied to already existing people: the law was a method through which personhood was imagined. (For now, I want to stay with imagined instead of invented, though I have not yet theorized why I prefer the former over the latter.)

While race is never mentioned in the Penal Code, it is everywhere apparent in how crimes are imagined and described. African sociality and organizing are criminalized. African practices of care and pursuits of freedom are criminalized.

If I were a Kenyanist—I AM NOT—and I focused on the law, I would track which crimes were committed by Africans from around 1895 to 1925, and how they were punished. I would be especially interested in how freedom pursuits—strikes, political rallies, armed resistance, political education, organizing, go-slows—were described, criminalized, and punished.

If the 2010 constitution sets out a vision for what a post-independent Kenya might be, no matter how limiting and truncating that vision, the Penal Code tethers Kenya to a colonial past in which African sociality and freedom pursuits were criminalized. It is way past time to abolish the entire thing.

1. I find this interview with one of the drafters of the constitution incredibly telling in terms of the elite priorities that drove the process. I also think the process drew from the wrong people—elites educated in law. What might have happened if those drafting the constitution had included poor people, rural people, sex workers, the formerly incarcerated, and all those who live under the violence of the penal code?

2. To retain some kind of order, I am mostly interested in the laws enacted from 1930 to 1950. After 1950, and especially after an Emergency was declared in 1952, a whole other series of laws were enacted to curb African organizing. That most of these remain on the books after independence in 1963 speaks volumes about how the post-independent state was administered.

3. Durba Mitra writes, “Perhaps no effort for systematization of state practice was as successful as the Indian Penal Code of 1860, a watershed set of criminal laws that ­ shaped the development of penal codes across the colonial world. This code brought subjects of the colonial state ­ under a uniform code of criminal law.” (In Indian Sex Life: Sexuality and the Colonial Origins of Modern Social Thought. Princeton: Princeton University Press, 2020. 68.) Had I the time, I would spend much more time comparing India’s Penal Code with Kenya’s, to see how racial distinctions were created. Especially for a Kenya that had the colour bar, a system with Europeans at the top, Indians after, and Africans at the bottom.

4. I found this overview useful: Morris, Henry Francis. "A history of the adoption of codes of criminal law and procedure in British colonial Africa, 1876–1935." Journal of African Law 18, no. 1 (1974): 6-23.