Law and order are a perquisite for peace and progress. Law and order is the body of principles held to express the divine will. Orderliness that we find in the universe stems from the principles and laws which govern or describe the behaviour of all things.
(Hume; 2006). This is universally true as it applies to all people of all races.As far back as 3000 BC, Egyptians had developed a civic code and promoted for rhetoric speech social equality and fairness. Hammurabi developed Babylonian law by codifying and inscribing it in a stone around 1760 BC. Arthashastra dating 400BC and the manuscript from 100 AD influential texts were authority legal guidance. Glenn (2000) explains that, when India became part of the British Empire, Hindu tradition and Islamic law was supplanted by the common law reflecting a unique blend of secular and religious influences. The outbreak of riots and civil unrests due to population explosion in the 1700s and 1800s in major cities in England and US led to the establishment of centralized law enforcement police for the maintenance of law and order and to protect society. France realized major legal reforms, inspired by ecclesiastical royal courts procedure and canon law.
he further notes that, by 22nd Century BC, an ancient, Sumerian ruler formulated the first law code which contained major constitutional innovations, casuistic statements and legal guidance. In the Encyclopedia Britannica (1911) it is noted that Turkey jurists called for the safeguards in Turkish prisons against vicious police. By 1760 BC, the Hammurabi developed and codified Babylonian law.
According to Ochieng’ (1991), the issue of law and order in precolonial African societies captivated a set of values, laws, traditions and customs which enabled the community to keep peace and meet the basic necessities. Leila et. al (2005) argued that in Transkei, Transvaal and Orange Free State, the chief issued judgements in line with the norms of the group. They further state that South Africa’s 1996 constitution explicitly recognizes customary law. This information is vital for our study.
Kipkorir and Welbourn (1973) notes that the Marakwet of Kenya had an elaborate system of maintaining law nd order based on norms. Curses and oaths were administered by invoking deities, ancestors or Asis( supreme being). These ensured justice to the offended. They noted that the marakwet could take oaths invoking the thunder (ilat) or God(Asis). These aoths were feared Various categories of oaths have been established in various studies of vasrious communities. For example, among the traditional Kikuyu society, Githige (1978) identifies ‘mugiro’, ‘kirumi’, ‘thahu’ and ‘muuma’. These oaths protected the vulnerable in society against exploitation. He further notes that the Mau Mau took oaths of secrecy as well as unity.
Githige (1978) further looks at the social aspect of oathing within the Mau Mau movement. In his research, he posits oathing as a vital component of the movement.Looking at the Gusii history, there exist various types of oaths, taboos, and curses aimed at maintaining law and order. There is substantial literature on the Gusii and Kenya, as a whole during the colonial period. Ochieng 1974 writes on the pre-colonial Gusii. Nyasani 1984 looks at the brutal British massacre of the Gusii between 1900 and 1914.
Many scholars have tried to study and document Gusii history for future generations. These pieces of information are at a threat of getting lost since most of them are stored in the memories of old men and women. Any time lapse will lead to loss of vital information if informants pass on with vital information. Mayer cited in Silberschmidt; (1999) notes that daily life in Gusii was like a theatre in which each person was expected to live up to the prescribed rules. Punishments were less evident as the system of established norms in the society helped to ensure law and order through obedience. (Silberschmidt; 1999) invoking of ancestors during the time of strife become another way of restoring peace and order among the Gusii. (Leila et al; 2005) The legal and norm based frameworks in any given society serve to mediate social life and social disputes, without these the level of cooperation necessary for everyday life will be in limbo. Norms and customs are embedded in the rule systems deeply constituent elements of the everyday social structures and institutions.
(Chirayat, Sage and Wool Cock; 2005). However, pre-colonial cultural practices does not inherently stipulate historical backing on law and order among the colonial Gusii hence a historical gap to be filled by this study. (Akama & Sterry; 2005) religious nature and cultural heritage was applied to restore order in marriage and access to land during the pre-colonial Gusii. The community holds Ngoro ya Mwaga in which ancestral and supernatural spirits are believed to dwell in high esteem. Songs were often used to educate the youths in their transition from childhood to manhood and prepared them for a the life challenges such as gender responsibilities. Marriage norms depict the procedural marriage laws that guided any marriage ceremony. The dowry explains the customary laws which were put in place to maintain law and orderliness in marriage life. Customary law indicates that women cannot inherit or own land, cattle or other resource.
(Mayer cited in Silberschmidt; 1999) Customary law, stipulates that only Sons only inherit the cattle, land and other assets that belong to their own house (Enyomba). Although national law recognizes the equal inheritance rights of daughters customary law has seldom been challenged. (Akama & Maxon; 1994) customary laws of marriage states that women are supposed to deliberately pursue continuous reproduction accomplishments in their marital behavior to increase chances of having more children to justify the well being of the marriage. In the evolving situation, new forms of marriage arrangement emerged that were at variance with the strict regulations, this exist during colonial period to date. Kinship system (ebisaku) and the existence of the Gusii cultural values and practices accorded of avoidance behavior (chinsoni) restricted a woman’s extramarital sexual activities.
These complicated rules meant to avoid sexual shame and rules governing respect (Ogosika) which regulate proper behaviour between different kinds of relatives. Gusii infant are raised to behave according to the codes of shame and respect. (Hakannson; 1994 ; Onyinkwa; 1971) Female genital mutilation even though prohibited by law was intended to keep girls and daughters in line. Daily interactions follow strict rules of politeness. It was law that a father may not set foot in his son’s house. Though interpersonal conflicts are common, people are not supposed to show outward anger through the strong emphasis on peaceful conduct and emotional control. Interactions between unmarried young people were once strictly regulated. (Akama & Maxon; 1994).
Conduct towards clansmen and outsiders were regulated by the fact that every Gusii accepted in principle certain codes of law and convention (Kuper, H & Kuper L; 2009).During the pre-colonial period, the magnitude of the council determined the formality of the male elders handling disputes over cattle, land crimes and other misdeeds. Only the Kitutu clan developed a rudimentary political office of chief (Omogambi) `giver of verdicts“. (Hakansson; 1996) Colonial local dispute are handled by a meeting of assistant chief (Baraza). Crimes and disputes were also taken to the court system.
(Kenani; 1986) At the homestead a patriarchal founder “omogaka bwo-omochie” maintained law and order among his wives, sons, married and unmarried and other residees. He was also consulted on issues of land, marriage and payment of bride price to avoid disputes, also responsible in making daily decision in and around the homestead. (Brett; 1968) The indigenous Gusii formal judicial system followed a well defined hierarchical lattice with specific functions that started from the basic level to the top most community levels. Cultural judicial systems represent the traditional forms of justice based on selection of respected clan elders who are deemed with emphasis on customary law. Clan elders made decisions on behalf of the clan. Disputes involving more than one homestead within a lineage were handled by a council of elders.
Since there were lack of peaceful settlement of disputes between family heads and the clans, peaceful procedure for dealing with conflicts was designated to Etureti which constituted highly respected elders who adjudicated inter-clan disputes. Proceedings were handled at ritualistic places under the tree as ancestral spirits were invoked in cases of arbitration until the 1940s.Their opinion expressed a general consensus with the approval of the community. (Akama; & Maxon; 1994) Egesaku, an informal court of appeal was based at the clan level, handled litigants who were not satisfied by the Etureti judgement. It had powers to reverse any Etureti ruling. The court had jurisdictions over land, border disputes, fratricides and incest.
Abakumi customary law stipulated that a cattle rustler was to be killed on the spot as it was a taboo (Omogiro). A magical religious curse was invoked on the offender if animals were not returned. Such cases were complicated when dealing with theft involving more than two clans. Justice to the offended is a positive justification of the fruition of law and order and the abrogation of criminal act. Informal courts; Bogongo, Ogeto and Inchwari constituted the entire judicial system reached decisions in a democratic process. This work will be important in providing background information for the present study which focuses on colonial law and order among the Gusii.
However, the authors does not undertake a historical study on the fundamental frameworks of law and order which guaranteed authority of using oaths to enforce such decisions during pre-colonial period hence a gap to be filled by this study.According to (Brett; 1968) Gusii had their own judicial system that obeyed the general law of nature and maintained sanity among the people. Law enforcement was closely linked and intertwined with the people’s social, economic, political and religious practices. The set regulations and laws were developed from the people’s daily activities that lacked clearly structured and formalized regulations of law enforcements to deal with various legal issues. However, the author emphasized on the structure of judicial systems at the expense of historical aspect development of law and order among the Gusii hence a gap in scholarship to be filled by this study.