Courts and chang'aa: The wedding ceremony Kenya forgot to attend

Kenya’s chang’aa crackdown faces calls to prioritise rehabilitation over arrests and fines. [Courtesy]

There are marriages in Kenya that nobody remembers attending, yet they have survived longer than some constitutional amendments.

One such marriage appears to be between poverty, illicit alcohol and the criminal justice system.

It is a peculiar wedding. The bride is a village mama pima carrying a perpetually crying baby. The groom is a tired fellow whose night has been spent negotiating with a bottle of chang’aa. The best man is the police officer. The priest is the magistrate. And somewhere behind the curtain stands the taxpayer, sweating under the weight of the dowry.

Village Wisdom has watched this ceremony for years.

Every morning, somewhere in Kenya, a police Land Cruiser coughs into a court compound carrying its human harvest. The doors open and out come the accused, whose presence produces a glimpse of the magistrate’s rare smile and warmth.

A court that may have spent hours giving mention dates to citizens pursuing serious matters suddenly develops Olympic speed when the Land Cruiser delivers its familiar cargo.

The court comes alive. Files appear. Names are called. Charges are read. Plea are taken. Fines are pronounced. Paid!

The village therefore has a question: Why does justice sometimes appear to sprint when chang’aa arrives?

Kenya has been fighting illicit alcohol for years. Chiefs pour chang’aa into drains and photograph the ceremony. Police officers pose beside seized drums as though they have discovered the Ark of the Covenant. Government agencies issue warnings. NACADA campaigns. Social media fills with pictures of destroyed breweries.

The Alcoholic Drinks Control Act is actually more intelligent than some of the enforcement theatre surrounding it. Its stated purposes include eliminating illicit alcohol and promoting treatment and rehabilitation of persons addicted or dependent on alcohol. Section 4 also assigns the relevant agency responsibility for national treatment and rehabilitation programmes.

The law, therefore, does not merely see a criminal. It sees a human problem.

Unfortunately, somewhere between the village brewery and the courtroom, the human being disappears and the fine becomes the celebrity.

At the police station, Village Wisdom imagines the first examination of the arrested drinker. The poor man is easy to identify. His trousers have surrendered. His shoes have negotiated a ceasefire with the soil. His face carries the biography of unpaid school fees.

But let the telephone of another suspect ring three times.

“Hello, bro. Niko station.”

Suddenly, the man’s economic classification changes.

He is a revenue opportunity.

Of course, these are serious allegations if asserted as fact and require evidence. Village Wisdom is speaking satirically about the suspicion that sometimes hangs over systems where poverty is easier to punish than its causes.

By morning, the court has its congregation.

The police Land Cruiser arrives.

The magistrate looks up delighted!

The clerk clears his throat.

The prosecutor opens the file.

“Mama Pima, umepatikana na nini?”

The woman adjusts the crying baby.

“Chang’aa.”

“Ni kiasi gani?”

The prosecutor reads.

“Lita elfu tano...”

The magistrate looks at the file.

The file looks guilty.

The woman looks frightened.

The baby looks furious.

And somewhere in the back of the courtroom, Village Wisdom wonders whether the baby was actually hers or whether, in the absurd economy of arrest, a jobless young mother had hurriedly “donated” the crying little witness for a cup of chang’aa and a promise that nobody would ask too many questions.

Article 50 of the Constitution guarantees a fair hearing and fair-trial rights. Article 28 protects human dignity. Article 49 protects arrested persons, including the right to be brought before court without unreasonable delay and, subject to compelling reasons, released on reasonable bail or bond.

And Article 159 requires judicial authority to be exercised in accordance with constitutional principles, including that justice shall be administered without undue regard to procedural technicalities.

But there is a deeper principle.

Justice is supposed to punish the person who committed the offence, not secretly invoice his innocent relatives.

If a poor drunkard is fined Sh10,000 and his wife sells the chicken, who has actually paid?

If his brother postpones his child’s school fees, who has been punished?

If his mother borrows from a neighbour, has the law convicted the mother too?

The offender may have committed the offence.

But the economic punishment can travel through the family like smoke through a grass-thatched house.

That is where the learned mind of the law ought to become truly learned.

The purpose of punishment is not merely to fill government accounts.

And this is where another uncomfortable question arises.

The Judiciary itself reports that fines form a significant component of its internally administered revenue. Its own published figures show court fines of about KSh1.42 billion in 2022/23, representing 53.33 per cent of the Judiciary’s reported revenue composition for that year.

When punishment produces revenue, how does the justice system ensure that revenue never becomes an unconscious incentive in the administration of justice?

A court that repeatedly fines a dependent alcoholic without addressing dependency may be complying with the narrow mechanics of punishment while missing the wider purpose of the law.

The Alcoholic Drinks Control Act expressly provides for treatment and rehabilitation. Indeed, repeated convictions under section 33 trigger a rehabilitation requirement.

So why does Kenya sometimes appear more interested in producing another receipt than another recovery?

Why do we celebrate another arrest but rarely celebrate another recovered alcoholic?

Why photograph the destroyed jerrycans but not the rehabilitation centre?

Why keep filling the court diary with the same human beings?

We have not defeated alcoholism. We have given it a court date. We have not destroyed the village brewery. We have not rehabilitated the drinker. We have perfected the revolving door.

While citizens seeking determination of civil disputes receive another mention, adjournment, compliance, and another ruling date.

But let the police Land Cruiser arrive with a morning harvest of drunk-and-disorderly suspects and suddenly the machinery can sound like a well-oiled sugar factory. Village Wisdom sometimes wonders whether the courthouse has secretly established a Fast-Track Department for Chang’aa.

A country without law is not a village. It is a jungle with a flag.

So Village Wisdom is not asking courts to stop enforcing the law.

It is asking them to enforce it intelligently.

Perhaps Kenya’s greatest embarrassment is not that chang’aa exists.

It is that after years of arrests, seizures, photographs, prosecutions and fines, the bottle keeps returning to the village table.

Are our courts merely processing the consequences of a social disease, or are they helping the country defeat it?

Because when justice repeatedly meets the same drunkard at the same door, takes the same fine from the same exhausted family and sends the same man back to the same village, perhaps the problem is no longer merely the bottle. The system itself needs to sober up.

Village Wisdom says: stop counting the drunkards. Start counting the recovered. Stop celebrating full court diaries. Start celebrating empty ones. Stop measuring justice by the money collected. Measure it by the lives restored.