Sunday, June 27, 2010

Failure to prove case against officer indicates need for reforms

Sunday Nation 27 June 2010

Last week, the police officer who was video-taped shooting and killing protesters at the height of the post-election violence was released by the High Court due to insufficient evidence.

Unlike other recent cases, this acquittal cannot be blamed on the judiciary alone. In a murder trial, the burden of proof is on the prosecution, which is required to demonstrate beyond any reasonable doubt that the person in the dock was responsible for the crime.

In this case, it appears there was a discrepancy in the serial number of the weapon allegedly used to commit the offence and the one produced in court as evidence.

Despite the fact that even the judge would be hard pressed to unequivocally state that the suspect is not guilty, the rigours of our trial system demand that the judge must not entertain even the slightest doubt about the culpability of the accused, given the gravity of the charge and the severity of the sentence.

It, therefore, behoves the prosecuting authority to be meticulous in preserving evidence to ensure that the case is decided only on its own merits and not on technicalities.

Notwithstanding the arguments about the lack of facilities and personnel to ensure flawless investigations and prosecutions, it is difficult to imagine what sophisticated equipment is required to properly store a murder weapon and identify it correctly in court.

The events leading up to the acquittal of this police officer, therefore, raise questions about the possibility of a conspiracy at some level in the police force to protect one of their own by ensuring that no matter the facts of the case, he would be acquitted on some technicality. Although it looks good to brother officers in the force to know that they would be taken care of in case they run afoul of the law in the course of their duties, it is eventually counter-productive to allow these infractions to continue.

At the end of the day, it diminishes the confidence the public has in the police force, reducing the cooperation of citizens in initiatives such as community policing. It also demoralises the upright officers in the force who would like to see justice being done, leading to a state where they eventually degenerate to the same level of incompetence in other areas of their work. At a more fundamental level, the acquittal of this officer raises questions about the ability of the Kenyan legal justice system to handle the even more complicated cases arising from the post-election conflagration.

If such a case that many would have considered open and shut and replete even with video evidence and a plethora of witnesses can fail, what about the more involving crimes such as the burning of people in their houses, forceful circumcisions, rapes and beheadings?

Can we actually continue talking about a local tribunal to try the so-called small fry, if we cannot even successfully conclude a case such as this one? It may be difficult for the ICC and the international community to understand why Kenyans are so fixated on The Hague, but looking at this case it should be easy to figure this out.

Kenyans know themselves so well that they would rather let someone else deal with the stench emanating from our moment of darkness than allow our flawed legal justice system to whitewash the crimes and perpetrate miscarriages of justice.

The tragedy with this situation is that as time flies, it will become more and more difficult to prosecute the so-called small cases arising from the violence. If we are still relying on our police force to preserve the evidence from that time, we are clearly setting ourselves up for massive failure. Indeed even if an international tribunal were to be formed, it would need an independent investigation and prosecutorial arm that would not be dependent on government resources to complete its tasks.

Perhaps only a new constitution stands a chance of correcting these glaring problems with our legal institutions by restructuring the entire state apparatus and enabling the vetting of important office holders.

This may result in a more accountable system of dispensing justice.

However, as far as the crimes of 2008 are concerned, it may also be necessary to begin thinking about a more credible truth, justice and reconciliation process that can comprehensively deal with both the crimes and their antecedents. The current travelling circus led by Bethuel Kiplagat and his team should be disbanded and restructured to be able to deal with this onerous task.

The alternative is continued festering of old and new wounds, waiting for an opportune time to erupt and cause untold suffering to future generations.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer, Moi University School of Medicine

Sunday, June 20, 2010

Grenade attack was a declaration of war

Sunday Nation 20 June 2010

Last Sunday, someone organised an attack on a gathering of Kenyans who had attended a prayer meeting that also served as a campaign rally for those opposed to the proposed constitution. Six people were reported to have died, with dozens others injured and the whole nation left with more questions than answers.

Even as the police go about investigating the motives and intentions of those involved, it is imperative that the whole nation takes a step back and re-examines itself in order to pre-empt this plunge back into the depths of depravity.

As a nation, we have been engaged in a process of constitutional reform for over two decades, and the forthcoming referendum is the culmination of this process. The fact that we are having a referendum is testimony to the fact that there is still no consensus on some issues, and in their wisdom or lack of it, our political class decided that the only way to sort out these issues is through a plebiscite.

Those in the ‘No’ camp who are arguing that the referendum should be put off in order to initiate dialogue in pursuit of further consensus are misguided, and should just focus their campaign on pointing out the flaws in the draft in order to enable its rejection.

There is never going to be consensus on many of the contentious issues, because most Kenyans have such deeply entrenched positions informed by religious, political and ethnic considerations that any attempt to address them will only result in a reversal of the ‘Yes’ and ‘No’ positions.

Many allegations are flying around concerning the possible culpability of those in either camp and, in typical Kenyan fashion, we are losing sight of the fundamental issue -- the loss of lives in a most heartless fashion right in the centre of our capital city. One would think that the nation would be united in condemning this terrorist act and hunting down the perpetrators to the furthest reaches of our Republic, but no, our responses are utterly predictable.

On the day of the attack, church leaders were quoted in the press as accusing the government and the ‘Yes’ campaign of orchestrating the attacks. Many in the ‘Yes’ team hold the opinion, which is expressed in a rather roundabout fashion, that the ‘No’ camp may have organised the attacks in order to attract sympathy. Only proper investigations can unravel the truth about these claims.

However, both these opinions are sickening in their predictability and facile childishness. It is as if the two sides are discussing goals in a football match, and not the loss of citizens’ lives. It is time to put a stop to this nonsense, and call this crime by its true name.

Last Sunday’s grenade attack in the heart of Nairobi was a declaration of war on the Republic of Kenya. The perpetrators are heartless soldiers of fortune who must be hunted down like the animals they are in order to face the sort of justice reserved for war criminals and their ilk.

For Pete’s sake, let us remember that even little children were targeted in this attack! What political opinions do they hold that would drive a maniac to end their lives so callously? Would the politicians’ response be the same had we been attacked by a foreign government or organisation? If this is the case, then we must, indeed, be very afraid.

The government must now shed its usual lethargy and move swiftly to deal conclusively with the perpetrators of this heinous act if it is to forestall similar occurrences in future. Should the government appear to be dilly-dallying and inept in its response, we must hold it squarely responsible, both the Green and Red wings of it.

As we exhort the government to act appropriately in this matter, we must not forget that investigations into similarly treasonable activities are still pending. Those who inserted the words ‘‘National Security’’ into the proposed constitution’s bill of rights are still roaming free in this country, despite a government pledge to ‘‘leave no stone unturned’’.

It seems that the police have been unable to conclude investigations into this matter, and no one has so far been arraigned in court to answer charges related to it. This lethargy is the main reason why Kenyans will take any government pledges of speedy investigations with a healthy dose of salt.

However, even as we mourn our dead and support the injured, calls for the postponement of the referendum must be ignored. We cannot allow some miscreants to disrupt this important national function for, doing so would be declaring surrender to sundry terrorists with a bone to pick with the establishment. The blood of our fellow citizens will have been shed in vain.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer, Moi University School of Medicine;

Monday, June 14, 2010

Apt challenge from Biden at an opportune time

By Lukoye Atwoli
Sunday Nation 13 June 2010

The Vice-President of the United States of America paid us a visit en route to attend the opening ceremony of the Football World Cup in South Africa.

During his visit, Mr Joe Biden made a much-heralded keynote speech at the Kenyatta International Conference Centre, addressing a wide range of issues concerning the place of our country in the international community.

Mr Biden gave Kenyans a feel of the direction the relationship between our two countries is likely to take in the coming years. He stressed the need for reforms in all sectors as a driver for social and economic progress, pointing out that a new constitutional dispensation is likely to unlock investment opportunities in this country.

However, his most telling statement hinged on the calibre of our leaders and the role Kenyans have in changing the situation. Echoing what many of us have been saying for a long time in these columns and elsewhere, the American VP bluntly told Kenyans that “change will not come from the top, but from you”. He stressed the role of citizens in ensuring accountability in all arms of government.

A closer analysis of the implications of Biden’s statement reveals a model of thought that is alien to most Kenyans, including the highly educated ones. Despite the changes the country has gone through since independence, nothing has changed much in the search for a Kenyan messiah who will descend from the heavens with answers to all our problems.

Throughout our history, we have never failed to beseech the Almighty God to send us a saviour to show us the way forward whenever we encounter difficulties. Perhaps the malady started way before independence when the late Jaramogi Oginga Odinga declared that Jomo Kenyatta was the Africans’ ‘‘Second god’’, arguing that “if there is anybody who has done much for the African people, next to what God has done, that man is Jomo Kenyatta”.

This hero-worship was duly constitutionalised when Kenya became an independent Republic in 1964, with a head of state who combined the powers of the Queen of England and the Prime Minister to form an executive monster that has haunted our country ever since.

At every election in the multi-party era, Kenyans have had a myriad of complaints against the incumbent regime, but have always looked up to some saviour to metaphorically slay the dragon on their behalf and lead them to the land of milk and honey.

Unfailingly, these heroes have disappointed in the hour of our greatest need. Although we have been quick to vilify them for failing to meet our expectations, we have failed to recognise the fact that these so-called leaders are but mere mortals, products of their own upbringing and socialisation. Most of them grew up waiting for the same mythical saviour to show them the way, and have no idea what to do whenever they find themselves cast in that role.

This generation of Kenyans is uniquely placed to bust this myth of some preternatural intelligence that is just waiting for the opportune moment to intervene and improve the lot of our people. Biden’s challenge to us is very apt at this point in our history when we are seeking to re-write the basic law of the land.

Instead of looking up to our ‘leaders’ for advice and guidance, we must take the proverbial bull by the horns and make all the decisions ourselves. With a new constitution in hand, we will have the opportunity to define the rules of the game, and hold our representatives to account whenever they flout them.

After the referendum, we must therefore remain vigilant to ensure that our elected and appointed officials conduct their business within the bounds of this document. Our work will only have begun with a ‘‘Yes’’ vote at the referendum and, unlike the picture being painted by the ‘‘Yes’’ campaign, it will be harder work policing this document than passing it.

Although Biden seemed to promise goodies if Kenyans manage to put in place a new constitutional dispensation, we must ignore such promises and instead make decisions about our destiny without expecting rewards from external forces. We must work at creating a better future for our children and future generations.

In the final analysis, we owe it to posterity to do our utmost to develop a society that is more stable, tolerant and prosperous than we found it.

As we approach the final lap in the race for a new constitution, it falls on every Kenyan to consider his or her role in shaping this new future for our country, not because the Americans say so, but because we believe it is good for this and future generations.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University School of Medicine

Sunday, June 6, 2010

Temper gay-bashing with facts, and tolerance

Sunday Nation 06 June 2010

A few days ago, an editor at the Nation, decided to bare her soul and express her revulsion at having to work on a story about homosexuals in Nairobi.

Dorothy Kweyu’s commentary was titled ‘‘Homosexuality an abomination in the sight of God and man’’ and, at some point in the write-up, she stated: ‘‘It occurred to me that, as a mother and a Christian, I would be failing in my responsibilities, albeit as a lay person, if I did not express the utter horror and revulsion that was mine at reading such brazen affirmation of an evil.’’

While it is in order for one to hold personal views about a subject as personal as homosexuality, it goes beyond the bounds of decency to hit out at individuals who are just going about their lives without posing a threat to anyone else.

Despite the author’s denigration of the so-called ‘‘tolerance ethos’’, it cannot be overstated that without tolerance for those we do not understand or even like, society, as we know it, would have a very ugly face.

Dismissing homosexuality as an ‘‘evil’’ raises questions such as who is harmed by the practice of homosexual relationships, and how this ‘‘evil’’ may be attacked and eliminated from our midst.

Sadly, both questions are often met with irrational circumlocutions often involving the use of mental health specialists to deal with an issue that has nothing to do with mental illness.

As we teach in most medical fields, anything that does not cause distress to the individual or significant social or occupational dysfunction is not the business of a health professional.

As long as an individual’s ‘‘condition’’ poses no risk to himself or to others, doctors have no business roping them in and forcing them to undergo ‘‘treatment’’ whose outcomes cannot be clearly measured.

This is in fact the reasoning that led to the removal in 1973 of ‘‘homosexuality’’ from the manual of mental disorders published by the American Psychiatric Association.

A seminal paper produced to examine the subject concluded that “for a mental or psychiatric condition to be considered a psychiatric disorder, it must either regularly cause subjective distress, or regularly be associated with some generalised impairment in social effectiveness or functioning”.

Homosexuality per se does not even approach this standard set three decades ago and is, therefore, classified as one form of normal sexuality among humans.

There are three different ways in which homosexuality is expressed — as a form of overt behaviour, as sexual orientation or preference, and as a form of personal or social identity.

Almost all commentators who express their revulsion towards homosexuals and homosexuality focus solely on the sexual behaviour.

They spend a lot of time imagining what happens between two homosexuals (usually men) and the sort of effects this may have on the participants, and then form an opinion based on their emotional reaction to this scenario.

In doing this, they forget that there are many female homosexuals (also known as lesbians) who enjoy sexual relationships with other women.

In scientific terms, normal sexuality is described as sexual behaviour that is devoid of inappropriate feelings of guilt or anxiety and is not compulsive.

For these conditions to be met, it follows therefore that sexual contact between two individuals must be consensual and non-coercive in order to be considered normal.

It is, therefore, unfair for writers such as Kweyu to compare some forms of normal sexual activity to ‘‘petty thieves and ... pickpockets’’. It is even worse to put homosexuals in the same category as paedophiles, rapists and murderers as others have done in the past.

The difference between homosexuals engaging in normal sexuality and the paedophiles, rapists and murderers hinges on the concepts of consent and free choice.

Sexual activity between two consenting adults in the privacy of their homes should not exercise the minds of so many in a society that claims to be as progressive and peace-loving as ours.

Whether the sex is heterosexual, bisexual or homosexual, the absence of consent and the presence of coercion are among the hallmarks of abnormal sexuality, and are often criminalised in modern societies.

Finally, Kweyu’s bold statement that homosexuality is “one of the main drivers of HIV and Aids — because anal sex poses the greatest risk of acquiring the deadly virus” — must not be left to go unchallenged.

In Kenya, as in most African countries, the greatest driver for HIV/Aids has always been unprotected heterosexual intercourse.

Clearly, then, those of us who are firmly heterosexual pose the greatest risk to the existence of the human race!

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer, Moi University School of Medicine.