The Gikuyu system of government, prior to the advent of the European was based on true democratic principles. This had been achieved by King Gikuyu being dethroned in a revolution known as Itwika which means to break away from and signified the breaking away from autocracy to democracy. It was necessary to have a constitution so during the festivities of Itwika revolutionary council, njama ya Itwika, was formed to draft the constitution. In the process of time, they moved to oligarchy, and passed into first instance to tyrannies and from tyrannies again to democracy.
Every village appointed a representative to the council making the constitution. Few rules were made which would act as guiding principles in the new government and these rules afterwards became laws.
Among these were:
•A government should be in the hand of council of elders (kiama) chosen from all members of community who had reached the age of eldership having retired from warrior hood
•The change of, and election for, government offices should be based on a rotation system of generations. This was in order to keep up with the spirit of Itwika and to prevent any tendency to return to the system of despotic government.
•All men and women must get married and that no man should be allowed to hold a responsible position other than a warrior or become a member of council of elders (kiama) unless he was married ands had established his own homestead.
Criminal and laws were established and procedures clearly defined rules and regulations governing the behavior between individuals and group within the government were laid down.
The administration of Gikuyu society was under two councils: the council of warriors and the council of elders. The two collaborated closely in the making of laws and their execution, in the protection of the country, the administration of justice, and the punishing of offenders. But in all this the role of elders was predominant. This is in keeping with the proverb: Kahiga gakuru gatiagararagwo ni maii.
(An old stone is not passed over by water.)
The Council of Warriors
This group comprised two grades of warriors. As soon as he was circumcised, a Gikuyu young man automatically became a member of the first grade. Though circumcision was very important, in terms of the knowledge imparted, the Gikuyu young man was still reminded that Kurua ti kwara itara. (To be circumcised is not the same as making a firewood trellis.) In every homestead the father acted as the judge, he settled all minor disputes between the members of his family. However, the power to dispute was invested in the council of elders (kiama) who conducted conflict resolution and solved most of the disputes according to the constitution.
In Gikuyu tribal government there were five principal councils (kiama) namely;
I. The council of junior warriors
II. The council of senior warriors
III. The council of junior elders (kamatimo)
IV. The council of peace (kiama kia mataathi)
V. The religious or sacrificial council (kiama kia maturanguru)
In spite of the curse which acted as a strong sanction, there were people in the traditional Gikuyu society who contravened the law more or less seriously. This was the result of human freedom which can choose the good which reason approves or the evil which looks attractive and enticing. But as the proverbs says: Murega akiirwo ndaregaga akihetwo. (One may disregard warnings, but one cannot disregard his/her own funeral.) The meaning of this is that whereas one is free to break the law, one cannot avoid the consequences of that breach.
It is for this reason the lawmakers in the traditional society devised a system of punishments in order to safeguard the society from those who make wrong use of their freedom. Like in modern times, a distinction was made between the more serious criminal offenses and the less serious breaches of the law.
Criminal offences including such acts as murder, maiming, adultery and such like were considered criminal offences in traditional Gikuyu society, and they invited corresponding penalties. In certain case the offender was ostracized. Kenyatta elaborated on this point saying: “The stigma associated with ostracism was far greater and much worse than
that attached to the European form of punishment.
Many would rather to go to jail than to be ostracized. The fear of this was one of the chief factors which prevented people from committing crimes. (The reason why ostracism was so much dreaded is that it severed an individual from the group. To the socially minded African this was tantamount to death.)
Since there were no systems or imprisonment, the offenders were punished by paying heavy fines to the kiama and compensation to the plaintiff. The majority of cases which were heard in the kiama general assemblies were those dealing with debts resulting from transactions of sheep, goats or cattle which were mainly exchanged in buying or paying marriage insurances, if you bought something and paid for sheep or goats if one animal died before producing a kid you were given back the carcass and you replace it. If the second person failed to fulfill the contract and you have paid you can get back the original number and their offspring without paying any compensation for looking after the animals.
Types of offences and their penalties
1.Murder and manslaughter
Both offences were treated in the same for kiama were not concerned with the motive of the crime nor the way in which it was committed, but with the fact that one person had taken another person’s life. Murder was a crime against society. Cold blood murder was treated with the greatest contempt as one had disgraced themselves and their age group. If two people were fighting and one dies, the murderer had the sympathy and respect of the community because he had acted in manly fashion and in self defense and therefore was treated leniently in his trial.
“After the murder was paid for, a sheep for ‘eating together’ was produced. After slaughtering the animal, the contents of its entrails were poured over a banana fruit or some other foodstuff as the elders who stood by watched. The purpose of this was to make the relatives of the victim and the murderer partakes of the food so treated. This is why the Gikuyu say: ‘We shall not give to the hyena twice’…After partaking in that act of eating, the two families will live in peace.”
If he was unable to pay, he was asked to go and replace the person he had killed until such a time as he was in a position to pay the fine. If he was unable to do so, he remained in the service of that family the rest of his life.
Procedure in a murder case
The family group of the murdered person took arms and invaded the murderer’s homestead with the objective of killing the murderer or one of his close relatives. If they succeeded, the case was settled there and then for the two lives were considered equal. If they failed, they would invade the cultivated fields of the murderer’s family group with swords as a sign of indignation and mourning for the death of their kinsmen. It was the duty of the elders of the peace council to intervene and bring the quarrelling parties to conciliation. In this way private revenge and blood feuds were checked by settling the matter peacefully once and for all.
The following fines were fixed as compensation for loss of life according to sex, irrespective of whether the person died instantly or from the injuries inflicted on him.
-If wounded seriously- provide a male goat for supply nourishment for the wounded man. If the wound healed the matter ended there.
-If he died, the man was charged with murder as providing the goat was considered as pleading guilty to the charge.
Compensation for loss of life
-Man- fixed at one hundred sheep or goats or ten cows
-Woman- thirty sheep or goats or three cows
2.Personal injury inflicted on a man or woman
In case of a loss of a limb or part of it, there was a compensation of each limb.
Loss of finger- compensated by ten sheep or goats
Loss of hand or arm- thirty goats or sheep
One ear then sheep or goats
One tooth- one sheep or goat
3.Adultery or rape
The man paid a fine of three fat rams to the kiama and nine sheep or goats to the husband or parents. In some cases the offender was ostracized. The stigma attached to ostracism was the greatest fear and much worse. A woman was taken back to her parents who to set up good relationship, had to pay a finer of one or two he-goats to the husband. The fine was to be followed by a feast of beer drinking between the two families. If this offence is repeated the wife was divorced, and the husband was entitled to get back all his roracio (bride’s price) with the interest and custody of his offspring. If there were children, conciliation was considered as the best procedure, for children were regarded as the pledges of love and unity.
It was an offence for a wife to invite a man secretly to her hut even a member of the age group despite the freedom of social contact especially in sexual life amongst members of the same age group. To do so, would be regarded as committing adultery. Any man who is caught breaking this rule is punished heavily by the kiama and before the kiama punishment; he is given a good beating by the outraged husband. The wife too was punished; her family had to pay affine of one or two he goats to the husband. If it is repeated she would be divorced. and the husband is entitle to get back all the animals he had paid to the wife’s family and get the custody of his offspring.
This depended on what was stolen.
-If sheep – thief required to return the original one with another one for purification.
-If it was killed and eaten – that was a serious crime and all those who participated were fined ten sheep or goats each.
-Honey from another man’s beehive – fine was thirty sheep or goats.
-If a man found a thief stealing his property he was allowed to beat the thief to his satisfaction and then bring him before the kiama to be fined.
-The offender had to give one fat ram to the kiama as court fees
-If a man became a habitual thief he was looked upon as a public danger and was put to death publicly sometimes by being beaten to death in a cruel manner by being rolled down a slope inside a beehive.
5.Destructive magic; witchcraft (Orogi)
It’s the most hated and unpopular magic among Gikuyu. Orogi is against the ethical and moral laws of the community. Anyone guilty of the offence of preparing Orogi was punished by death. The way in which they were executed acted as a warning to the other members of the community. Before one was executed it had to be proofed by witnesses on oath that he had practiced Orogi, and had killed by poisoning a man, a woman or a child. The action was brought before the kiama by the family of the victim. The council of elders sent the senior warriors to arrest him and bring him before the kiama for trial. If found guilty, he was burned, or crucified at the junction of the main roads.
When a man has been convicted of the capital crime of antisocial wizardry, his offence is against the whole society, but it is one of his own kinsmen who has to pass final judgment against him by lighting the fire of his execution
6.Impregnating a girl
According to Gikuyu, any young man who impregnated a girl (kohira moiritu ihu) is severely punished by the kiama.
The fine for this is nine sheep or goats and three big fat sheep (ndorome) as the kiama fee ( tribal council) besides this man is made asocial outcast “sent to Coventry” (kohingwo) by all the young men and women of his age group.
Punishment is also extended to the girl; she pays a fine by providing feast to the men and girls of her age group. She is also liable to ridicule (kuhingwo na gucambio). She would also remain single, if she gets a child outside marriage.
As a man holds supreme authority over his smithy so does a woman in her pottery industry. Both sexes have to obey and respect the custom governing this division of labor and anyone disregarding this custom or daring to cross over the prohibited ground is met with severe punishment or is ostracized.
8.Marrying from outside the tribe custom
It was an offense to marry a girl outside the rigid tribe custom and failing this led to being turned out and disinherited. It was a taboo to marry an uncircumcised person.
9.Breach of contract in land tenure
A person who had been given cultivation and building rights (mothami) was obliged to give beer when he had brewed from the land given to him. A person with both the rights was further obliged to help incase of any of emergency such as building houses. A breach of contract on the part of such a person led to withdrawal of his rights and removal from the land. The authority was invested in the hands of the owner of the land (moramati). If mothami refused to quit the land he was taken before the council of elders who naturally gave judgment in favor of the moramati.
If after a person has paid bride price to the father in law but after a year or two, the wife runs away with another man, without a good reason, he was entitled to claim return of all the animals and the offspring thereof especially if there were no children. All the animals were traced.
11.Procedure for recovering debt
Creditor makes sugarcane beer and takes with him the beer to his debtor- as a sign of friendship and as a reminder of the wish to settle the matter peacefully.
If he fails two elders and if he still fails he takes it with three elders after which he had a full right to take the matter before the kiama as he had tried his best to persuade his debtor to settle the matter mutually out of court and had failed.
Creditors and debtors both pay court fees in kind namely, sheep or male goats. In big cases such as that of land a bull was paid.The fees depend on the number of animals connected with the case.