There are arguments these laws are being abused because they restrict freedom of movement and the right to a fair hearing
It’s been 54 years since Kenya got her independence and yet there are still a number of archaic, colonial and discriminatory laws on the statute books. From archival research I have done it’s clear that these laws are used to exploit, frustrate and intimidate Kenyans by restricting their right to movement, association and the use of private property.
They also make it difficult for ordinary Kenyans to make a living by imposing steep permit fees on informal businesses.
These laws were inherited from the colonial British government and used to be within the purview of local government municipalities under the Local Government Act. This act was repealed when municipalities were replaced by counties after the promulgation of the 2010 Constitution.
Currently, these laws are contained in county rules and regulations, criminalising a good number of activities, including making any kind of noise on the streets, committing acts contrary to public decency, washing, repairing or dismantling any vehicle in non-designated areas (unless in an emergency) and loitering aimlessly at night.
The colonial laws served a central purpose – segregation. Africans and Asians could be prosecuted for doing anything that the white settlers deemed to be a breach of public order, public health or security.
Violating human rights
Many of these archaic laws also restrict citizens’ use of shared or public space. Some of them grant the police powers to arrest offenders without warrant, and to prosecute them under the Penal Code.
Offences like the ones mentioned above are classified as petty crimes that can attract fines and prison terms.
Some have argued that these laws are being abused because they restrict freedom of movement and the right to a fair hearing.
A few of them also hinder the growth of the economy. For example, hawking without a permit is against the law. To get a permit, traders must pay steep fees to various government authorities. This requirement is a deterrent to trade and infringes on the social economic rights of citizens.
Another example is the law that makes it a crime to loiter at night. This law was initially put on the books to deter people from soliciting for sexual favours, or visiting unlicensed establishments. It has however become a means for state agents to harass anyone walking on the streets at night.
Genesis of archaic laws
The laws can be traced back to legal ordinances that were passed by the colonial government between 1923 and 1934.
The 1925 Vagrancy (Amendment) Ordinance restricted movement of Africans after 6pm, especially if they did not have a registered address.
Post-independence, the ordinance became the Vagrancy Act, which was repealed in 1997. The Vagrancy Act inspired the Public Order Act, which restricts movement of Africans during the day, but only in the special circumstances that are outlined in the Public Security (Control of Movement) Regulations.
The Witchcraft Ordinance of 1925, which formed the basis for the Witchcraft Act, outlawed any practices that were deemed uncivilised by colonial standards. The provisions of the Act are ambiguous and a clear definition of witchcraft is not given. This has made it easy for authorities to prosecute a wide range of cultural practices under the banner of witchcraft.
Rationale behind punitive laws
The idea behind most of the targeted legislation enacted by the colonialists was to separate whites from people of other races, including Asians. For example, in 1929 settlers in the white suburbs of Muthaiga in Nairobi raised an objection when the Governor announced plans to merge their suburban township with greater Nairobi.
That would have meant that they would have had to mingle with locals from Eastleigh and other native townships, which were mostly black. As a caveat to joining the greater Nairobi Township, the Muthaiga Township committee developed standard rules and regulations to govern small townships.
These rules and regulations were applied to other administrative townships such as Mombasa and Eldoret.
White townships would only join larger municipalities if the Muthaiga rules applied across the board.
The Muthaiga rules allowed white townships to control and police public space, which was a clever way to restrict the presence and movement of Asians and Africans in the suburbs.
Variations of these rules remain on the books to date. The current Nairobi county rules and regulations require residents to pay different rates to the county administration depending on their location.
In addition, the county rules demand that dog owners must be licensed, a requirement that limits the number of city dwellers who can own dogs. This rule can be read as discriminatory because the vast majority of lower-income earners now find themselves unable to keep a dog in the city. Indeed, discrimination was the basis of the colonial legal framework.
Can oppressive laws be legal?
Strictly speaking, these discriminatory rules and regulations were unlawful because they were not grounded in statutory or common law. Indeed, they were quasi-criminal and would have been unacceptable in Great Britain.
Ironically, because such rules and regulations didn’t exist in Great Britain, criminal charges could not be brought against white settlers for enforcing them.
To curtail freedom of movement and enjoyment of public space by non-whites the settlers created categories of persons known as “vagrants”, “vagabonds”, “barbarians”, “savages” and “Asians”.
These were the persons targeted by the loitering, noisemaking, defilement of public space, defacing of property, and anti-hawking laws. The penalty for these offences was imprisonment.
Anyone found loitering, anyone who was homeless or found in the wrong abode, making noise on the wrong streets, sleeping in public or hawking superstitious material or paraphernalia would be detained after trial.
Police had the powers to arrest and detain offenders in a concentration camp, detention or rehabilitation centre, or prison without a warrant.
This is the same legal framework that was inherited by the independence government and the very same one that has been passed down to the county governments.
The Public Order Act allows police powers to arrest without warrant anyone found in a public gathering, meeting or procession which is likely to breach the peace or cause public disorder. This is the current position under sections 5 and 8 of the Act.
This law, which was used by the colonial government to deter or disband uprisings or rebellions, has been regularly abused in independent Kenya.
At the end of the day Kenyans must ask themselves why successive governments have allowed the oppression of citizens to continue by allowing colonial laws to remain on the books.