By Richard Munguti
Kenya Times
PASTURE, water points and cattle rustling are the major causes of the inter-clan killings in the hinterland areas of North Eastern and Eastern provinces.
These incidents which have largely been attributed to cultural practices continue to cause pain and death in the dry sprawling Garissa, Moyale and Marsabit districts.
In law whenever such killings occur, they are classified as criminal offences. They may either be manslaughter or murder- depending on the immediate circumstances- and they carry various penalties. Those charged with murder are sentenced to hang while those facing manslaughter indictments earn custodial sentences.
And because these areas are underdeveloped and lack basic infrastructure, raiders are able to launch their attacks and vanish into the jungle without being apprehended to face the law.
The situation is further complicated by the fact that the local political leaders speak from Nairobi and reside in posh city estate while their people are suffering at the hands of their tormentors.
The Government appears to be doing little or nothing at all to alleviate the situation. Infrastructure as is known and seen is inadequate because the existing roads and other support systems are either lacking or are in a dilapidated state. These coupled with the expansiveness of the region make it near impossible for quick response from the security forces and for justice to be dispensed.
From the colonial days to date, Northern Frontier Districts have been neglected and as the government beginning to focus on these region and begin peace building process, a delegation of peace makers- six Members of Parliament and other top government officials -perished in a plane crash early this week.
But how long will it take to develop these areas and inculcate the intrinsic benefits of peace and respect for fundamental human rights and law among communities that are culturally hostile to each other in this harsh environment where survival for the fittest is the name of the game.
It may take a long time before these communities can discard those cultural practices such as cattle rustling, that are inimical to good neighbourliness and mutual coexistence. But it behoves local leaders to first embrace peace and explain its benefits to their people as well as demand that instruments of justice be put in place to punish outlaws and ensure protection for the innocent victims of the violence.
Under the law murders are termed as crimes punishable under the laws but the communities still believe in paying camels and cattle for loss of precious life which is God given. These communities must know that the constitution of this country guarantees protection of human life and property. They must learn to subject themselves to the common of the land that would punish crime instead of the cultural system that seem to reward criminals by letting them go scot free.
It is also important for religious leaders -Christian and Muslim – to teach the communities to uphold good neighbourliness and the need to love one another as spelt out in both the Bible and Quran.
It is this breakdown of peace which caused the saddest day in Kenya’s recent history when the country lost peace makers. Among the dead were some of Kenya’s top lawyers and legislators, Dr Bonaya Godana and Mirugi Kariuki.
Among the institutions which the Government need to strengthen are the law courts which punish criminals harshly as by law required. High courts need to be established in those areas as a measure to curb these atrocities and heinous crimes committed and meted out on innocent wananchi by the criminally minded people.
In Moyale, Garissa and Marsabit only Resident Magistrates courts are in existence but no High Court.
Courts help shape the communities they border by pronouncing deterrent sentences to criminals. Those who earn custodial sentences and death sentences scare potential criminals and the consumers of justice are educated in that way.
Capital offences are tried in Nairobi from those areas. Recently four pastoralists who were charged with killing a herder from Garissa were acquitted by a Nairobi court due to lack of evidence.
The accused Yakub Shabel Osmal , Mohammed Ahmed Hassan, Mohammed Abdinassir Bilal and Noor Qure Abdille were set free by Senior Principal Magistrate Rosemelle Mutoka.
They were charged with killing Daud Maalim Shide on July 5, 2005 at Modey sub-location in Garissa District.
They were first charged with murder but the charge was reduced to manslaughter by Justice Mohammed Ibrahim. Judge Ibrahim directed that the file be placed before the Chief Magistrate court for trial.
The prosecution led by Chief Inspector William Kemboi called seven witnesses who did not tell the court the ulterior motive of the killing of Daud Maalim Shide.
All the court was told was that a group of attackers who took away goats killed Daud. The court heard that the pastoralists differed over pasture then struck the deceased.
Before the court reduced the charge to manslaughter, elders from Rer-Yahye and Rer-Adengari clans had signed a truce following the death of Daud. Rer-Yahye had agreed to pay 40 camels in compensation.
They had asked the Rer-Adengari to withdraw the criminal case against the four and agreed to coexist peacefully.
Said Mutoka in her judgement: “The case by the prosecution was a monumental flop and had absolutely no legs to stand on. There was no evidence linking the accused to the death of Daud.”
She said the clans had opted to settle the matter in line with the traditional Somali customs and way of life.
Mutoka said vital witnesses were not called to state the cause of death due to the out of court settlement. She noted that the prosecution adduced evidence which was of no value to the case. She blasted the investigating officers for a shoddy job and freed the accused for lack of evidence.
Since the accused were not punished, the clans did not learn anything and human life to them equals 40 camels which they paid out to the clan of the deceased. Was justice seen to be done in the eyes of the law in that case?
Source: Kenya Times, April 16, 2006
