An Alternative View Of Our Legal System

Nyambura Mutanyi
30 July ,2013

It’s not often that one finds a system that closely parallels the society one lives in. Every so often, however, an element of one’s environment seems to be a microcosm of something greater. The thing I perceive to be an organic representation of Kenyans and the constitution is this:


Google and Equity Bank partnered to create a system that allows for cashless commuter transactions. Their intention was to make the commuting experience easier. A lot of time is wasted on Nairobi’s public service vehicles (PSVs) as people search for coins to provide change. The basic premise was this: if more and more Nairobians (for now) load their cards with cash, everyone wins.

This is where the parallels begin. The Kenyan constitution, endeavours to paint a picture of what we reckon to be our values, hopes and aspirations. It places institutions in a context that does not exist but which it anticipates will come to pass. So does BebaPay; it places the Kenyan commuter and the conductor that serves him/her in an idyllic context.

The assumption that all parties are enthused about the arrangement in place is a huge part of these parallels. When a BebaPay agent at the bus stop speaks about the card, one gets the impression that it represents a win-win situation. Just as one would imagine that great laws would be a boon for both citizenry and those in power. The holder of a BebaPay card has no need for the change machinations of yore; the conductor only need carry a reader, not a bag full of coins. The citizen need only follow the law and both s/he and the state can function well.

As with so many systems, people have not been factored into the equation-heir motivations, ambitions, and rationality or lack thereof. Power manifests itself in myriad ways. Here are a two ways in which it mirrors these little cards.

The search for an opportunity to abuse power

I have spoken to more than one BebaPay card holder. The phenomenon of the conductor who holds on to one’s card a bit longer than they need to emerges. Their hope is simple, and it is this: If you are fidgety enough about your card disappearing among the coins, route changes and random characters that work with the conductor, you will happily part with cash to keep it safe. If this happens more than once, a few people leave their cards at home and revert to cash.

I understand the desire on the conductors’ part to dissuade the use of a cashless method. There’s less for them to skim off, to pay the myriad cartels on each route, and so on. This blog post features a man speaking plainly about which routes to choose if one intends to avoid cartels. These papers also explore the interplay between the law, cartels, and the business of transport in Kenya. It is also plain to see how this mirrors the Kenyan relationship to the law. One is hard pressed to find a Kenyan who has not encountered the civil servant who uses their post to ensure that following the law requires so many hoops that even the best-intentioned people will agree to their abuse of power to be done with the interaction.

An almost innate need to circumvent the system

One of the unspoken rules of the BebaPay system is that the failure of the conductor (in a branded PSV) to have a reader lets a passenger travel free. Some conductors will work round a reader that no longer works (because it is dead, broken and so on) by getting cards read by conductors on other PSVs. Most, however, will do something I thought was strange until I pondered the issue in light of Kenyan society:

They will ask for less fare; sometimes as much as 50% less. As long as one hands over cash.

Now, one would imagine Kenyans would resist these overtures. However, the card is designed to be a debit card. Because they get no discount for using it, some Kenyans will pay up. After all, they continue to hold the funds in their cards and get a discount on their fare. Together, the passenger and the conductor work to circumvent the system. Both of them come out on top but it disenfranchises the PSV’s owner (who takes a pay cut) and passengers who would follow the rules as the next two or three interactions of that sort leads them to ditch the card.

Contrast this with state services that have a well-laid out flow of events. Go to a Kenyan public hospital, for example, and observe this. One needs to fill certain forms, go to certain windows and so on to get served. However, there is generally the character who, once paid, will ensure that the transition from one stage from another is seamless. Meanwhile, those who are following the rules are following the rules wait interminably and not without a lot of misery.

For people to work round a straightforward system in this way, there must be two willing parties. As with BebaPay cards, those who can afford to check out of the system will do so. Unlike the card, which is just a transport solution, sometimes the interaction of the citizenry and the state is a matter of life and death. If those who can circumvent the system do so, there will be little for those who obey the rules and cannot afford the alternatives. Not much good can come of this, I imagine.

Something has been happening in Nairobi. Some buses have turned into BebaPay card only buses. What this means is that only a bearer should board. Kenyans are well aware of the sentiment that rules are for breaking. They will regularly get into these exclusive PSVs. However, it provides an opportunity for people to sign up for cards, to try them out, to be immersed in the experience. The intention on the part of the bus owners is to make their operations as cashless as possible especially in light of the spate of carjacking that has been witnessed of late. The challenge for commuters is to sign up and conductors are charged with the task of acting as stewards.

Something is happening in Kenya. People continue to abuse power, to circumvent the public system, to abandon it in favour of private options. Some public institutions, however, are waking up to the reality of these circumstances and transforming them. I shall use Kenyatta National Hospital (KNH) as an example of this.

For years, KNH was a morass of inefficiency. In some ways, it could still be much better. However, changes in administration and the utilisation of technology have resulted in a situation where the average patient’s experience is quite seamless. Working within the framework in place, a visit to KNH will result in good treatment conditions at a fair price and within reasonable time.

As with BebaPay, the state and its legal frameworks have some way to go. As with nation building everywhere, all parties strive towards a better expression of their ideals. Maybe if we think of life and the things we do as a microcosm of what we are as a society, we may become more engaged in the things that affect us and make us who we are. Amazing, beautiful, contradictory, determined to be more.

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