Prof Mutua knows only too well that blood money mocks justice

History often returns to mock us. For, we were young people, barely out of our teenage years in the early 1980s, fighting for a free, fair and democratic society.

We said we wanted democracy and justice. We were domiciled at the University of Nairobi, where we called ourselves “budding intellectuals” and “scholars”.  

Every so often, we burst into the streets, completely unannounced, to demonstrate for freedom and justice.

Our agitation got into unexpected intersections with other people’s plots over the period 1979–1986.

Many a young man paid heavily. Some were expelled from the university, others were jailed. Some died in prison. Others returned as vegetables. To say it was terrible is to understate.   

Makau Mutua was among those who were expelled in 1981 for fighting for electoral justice and intellectual freedom. The details belong to some other day.

We huddled together with him and six others throughout the night before they left for Dar, as youthful refugees. Makau went around the world and returned to Kenya a globally distinguished and respected legal scholar.  

Today, he is President William Ruto’s Senior Advisor on Constitutional Affairs. He is also the “coordinator for the compensation framework for victims of demonstrations and public protests.” He is seeking justice for people who have been violated by the State.

Already, there is uproar against the compensation he has put in place, as indeed there should be.  

Why? Justice speaks several moral and legal languages. But governments find it convenient to merge these languages into one grammar and one act.

It is the language of money. And it mocks justice. Our revolutionary comrade of yester decades knows the grammars of justice.

There is little doubt that he understands why the uproar. He needs to advise the President accordingly.   

Among the languages of justice are the grammars of restorative justice, restitution, retributive justice, distributive justice, and transitional justice. Let me stay with those five for now.

Show of humility

Distributive justice speaks to sharing of opportunities in the polity. When the Gen-Zs protested in 2024, their voice was a cry against skewed distribution.

Taxation, opulence, wastefulness and cost of living spoke to absence of distributive justice.  

The State answered by cutting short 65 lives. How do we restore them?

Restitution speaks to what was taken away. Is it even possible to return life as property that has been taken away?

Show of humility and remorse is the beginning of restitution in the Gen-Z matter. Has Prof Mutua probably advised his superiors on the need for remorse and humility? If he has, why do they mingle compensation with fresh violation? 

Restorative justice is about repairing relationships and healing. It presupposes admission of guilt. This has not been done. We cannot begin repairing relations before someone accepts responsibility.

At best, money paid to victims only becomes fees for political convenience or charity. Money is good, but criminal accountability is a must in restorative justice. 

In other words, there must be retributive justice. The offender must be punished for acts that are clearly criminal. Who killed these youth? Who gave the order? Will future protesters be safe?

All these questions speak to the need for truth, accountability, institutional reform, and reconciliation. They boil down to transitional justice. 

You cannot kill us and throw money at our families and call that justice. Compensation is only one pillar of transitional justice. But it comes at the end of a chain of other just imperatives.

This is what the government is telling aggrieved families, “We cannot tell you who killed your son. We cannot promise prosecution. We will not tell you who gave the order to kill. We cannot promise that it will not happen again. But here is some money to console you.” 

The State values closure more than the truth. But justice does not work that way. The government is speaking the language of money.

But citizens are speaking the language of constitutional accountability, retributive justice, and transitional justice. The two languages are not interchangeable. Over to you, Comrade Makau Mutua. 

-Dr Muluka is a strategic communications adviser.